Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court by Ilya Shapiro

Author:Ilya Shapiro [Shapiro, Ilya]
Language: eng
Format: epub
Publisher: Regnery Gateway
Published: 2020-09-22T06:00:00+00:00

Later in 2006, a new controversy arose over three circuit nominees who had not been specifically mentioned in the Gang of 14 deal but were still subject to its provisions. These nominations were returned to the White House ahead of the Senate’s annual August recess. They were all renominated, but again no action was taken before the break for the midterm elections, after which Chairman Specter declined to process the nominees during the lame duck session.

The Gang of 14 deal expired in January 2007, but the Democrats now had a 51–49 Senate majority anyway. President Bush didn’t resubmit some of his more controversial candidates, but the Democrats still blocked several nominees without resorting to filibuster, typically by not giving them a hearing. At the same time, there was less confirmation drama than there had been, and more compromise candidates. Only two of ten circuit nominees received any no votes in 2007–08, compared to six of sixteen in 2005–07, and the last two years of Bush’s term also saw many more district judges confirmed (fifty-eight) than in the previous two years (thirty-five). In September 2008, Senator Leahy referenced the Thurmond Rule of not confirming judicial nominees in the months leading up to a presidential election, but in the context of making exceptions to it. As it happened, judges were confirmed after July 1, ten of them by unanimous consent in September.

If a justice had retired during this time, it would have been easy for Democrats to block a replacement in committee, or by a party-line vote on the Senate floor. No vacancy arose, but Senator Schumer still declared in July 2007 that the Senate should only confirm another Bush justice in “extraordinary circumstances,” because the high court was “dangerously out of balance.”51 This affirmation of the Biden Rule would come back to bite the Democrats.

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