The District of Columbia Circuit Court of Appeals is widely seen as second only to the Supreme Court in importance. It is where business comes to seek friendly interpretations of rules administrations write to execute the laws passed by Congress.
Federal judges are appointed by the president subject to the “advice and consent” of the Senate. Of the seven judges currently sitting full-time on the DC Circuit, four were appointed by a Republican president, three by a Democrat. They currently are assisted by six senior, or semiretired, judges on a part-time basis. Of these, only one was originally named by a Democrat.
Rulings by the court’s three-judge panels have lately reflected this partisan split. The court has struck down business-opposed rules adopted by the Securities and Exchange Commission to implement the Dodd-Frank act. It has sided with employers against organized labour, ruling that companies cannot be forced to inform workers of their rights. It has blocked enforcement of Environmental Protection Agency clean air rules.
The court has four vacancies. President Barack Obama sent the Senate three nominees to fill them. The Senate’s Republican minority said they didn’t need filling and refused to let the nominations come to a vote. They could do that because the Senate is one of the institutions of the US government that makes America a republic rather than a democracy.
The founding fathers did not trust the demos, so they established the Senate to act as as adult supervision for the majoritarian House of Representatives. They gave each state two senators regardless of its size and had them serve for terms of six years, as opposed to two for members of the lower chamber. Initially, senators were not even subject to direct election
The Senate was designed to a deliberative body, a saucer, said George Washington apocryphally, in which to cool the scalding tea served up by the House.
From the outset, no limit was set on debate. If a senator or group of senators did not want something to come to a vote, all they needed to do was keep on talking about it, otherwise known as filibustering. In 1917, amid frustration that nothing was getting done, members agreed that debate could be shut down by a two thirds majority. In 1975, the magic number for cloture was reduced to 60.
As keen as the founders were to avoid majority tyranny, they said nothing about there having to be a supermajority in the Senate for any measure other than a consititutional adendment or an impeachment to move forward. That is a matter of the Senate’s own rules and precedents.
Last week, Senate Majority Leader Harry Reid decided to break with precedent and change the rules. He and most of his fellow Democrats had run out of patience with Republicans using the supermajority requirement to block confirmation of Mr. Obama’s nominees for judicial and executive appointments. More importantly, they wanted to DC Circuit Court of Appeals rebalanced in the president’s favour.
So, and not entirely without qualms, they exercised what had come to be called “the nuclear option” and asserted in the Senate the kind of majority rule that obtains in the House. The current party ratio in the Senate is 53 Democrats, 2 independents who generally vote with them and 45 Republicans. The rule change was approved by 52 to 48.
To some it may be a wonder that the “nuclear option” was not exercised long ago. One reason racial justice was so long delayed in the US was the blocking power the filibuster gave segregationist southern Democrats until the mid-60s. Nonetheless, both parties have hitherto refrained from taking the chance to change the rules when they’ve had it knowing that what goes around will almost certainly come around the next time they are in the minority.
Senator Reid insists that the rule change only applies to votes on presidential nominees for positions other than Supreme Court Justice, and will not be used hurry through legislation. But now that the genie is out of the bottle, the temptation will be to make more than the one wish.
One result may be the further politicisation of the federal bench as both parties use whatever opportunity get to appoint their preferred flavour of judicial activist without having to considet the other side’s feelings. This was not what the drafters of the constitution had in mind. They hoped their system would foster a culture of compromise. So hostile are Washington’s factions to compromise these days that they are breaking the system.