The Judicial Hold: An Even Worse Privilege

The judicial hold, which has become a routine feature of judicial nomination, is a senatorial abuse even worse than the executive appointee hold.

The Democratic majority in the Senate has dropped below 60, and suddenly the air is thick with calls for filibuster reform. As a practical matter, it’s hard to see how the filibuster could be altered unless leaders in both parties agree. So – any reason Republicans should do so? Over the next few posts, I’ll suggest some ways to think about this problem.

This is the fifth installment in a series.  Click here to read the rest of the series.

The judicial hold is a senatorial abuse even worse than the executive appointee hold. Most senators appreciate that it is wrong for them to delay the staffing of the executive branch to score some complaint about some completely unrelated thing the president did, or omitted to do. They do feel inhibitions about using this power to any great extent. Not so the judicial hold, which has become a routine feature of judicial nomination. So much so, in fact, that presidents have been compelled to cede to home-state senators much of the power to choose federal district judges. Hence the joke that a federal judge is usually the one-time college roommate of a senator.

Back in 2005, Republicans proposed a solution for eliminating judicial holds, the so-called nuclear option. The next time a Democrat placed a hold on a nomination, they would ask Vice President Cheney (in his capacity as president of the Senate) for a ruling on the constitutionality of such holds. Cheney would rule: No, they were not constitutional, they usurped the president's appointment power.

At the time, this struck me as a very bad idea. We were trying to REBUT the idea that the Bush administration was engaged in unprecedented unilateral power grabs, not CONFIRM it. I preferred the Gang of 14 deal which placed the Bush nominees onto the bench while preserving the senatorial hold for "extraordinary circumstances." But a consensual, negotiated end to the judicial hold? Yes, that could be a good outcome - especially if it does not go into effect until 2017, when who knows who will hold the presidency.

More to come...