April 26, 2005
The 10 Most Ideologically Extreme Candidates
In my Roll Call oped yesterday, I began by noting that "Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees." Juan Non-Volokh rightly points out here that some of the judicial nominations being held up by Democrats are being blocked not because of the particularly ideology of the judges. In the Sixth Circuit, some nominees are being blocked by Democrats because Republicans blocked Clinton nominations to the Circuit.
In addition, some readers have written to me, pointing out that as a percentage of appellate court nominees, it is not fair to say that Democrats have approved a "vast majority of nominees." (UPDATE: See also here.) I believe that looking at just this category (I haven't confirmed this), Democrats have blocked 20% and approved 80% of Bush appellate court nominations.
I don't think either argument changes one bit my main point: "[T]he very usefulness of the Senate is that it is a non-majority institution. If we like the current structure of the Senate for this reason, we should also like the filibuster. The filibuster allows an intense minority to block the will of the majority. Of course, too much blocking has political costs, which is why Democrats have approved the vast majority of Bush’s judicial nominees. And it will be politically hard for Democrats to filibuster a Supreme Court nominee the next time a vacancy arises, unless that nominee is truly outside the mainstream of judicial thinking. But the broader point is that there is a political solution to the filibuster problem. With Republicans keeping the political pressure on, Democrats will have to choose their battles wisely, blocking only the most extreme of nominees. The stronger the Republicans are in the Senate, the fewer nominees that will be blocked."