Federal Bench Could See New Faces After Senate Rules Change

The Senate voted Thursday to change its rules to make it easier to approve judicial and executive branch nominees by curbing filibusters. This so-called nuclear option represents a radical shift in Senate procedure. Democrats had threatened to use after Senate Republicans upheld the confirmation of three judges to the D.C. Circuit Court of Appeals, and the action could have a huge impact on the federal bench.

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As we heard, today's vote allows Democrats to get an up or down vote on executive branch nominees and all judicial nominations with the exception of Supreme Court nominations. Joining us now is NPR legal affairs correspondent Nina Totenberg. And Nina, President Obama today talked about an unprecedented pattern of obstruction that he's dealing with in Congress. How stymied has he been with his judicial nominations?

NINA TOTENBERG, BYLINE: Melissa, everything is a matter of degree when you talk about confirmations and certainly Democrats are hardly pure in this. But Obama, more than any other modern president, has seen the opposition party put a chokehold on his judicial nominees. At the moment, for instance, he has 51 judicial nominees pending.

At this point in the George W. Bush administration, there were 19 pending judicial nominees. In the George H.W. Bush administration at this point, there were 26 vacancies or pending nominations and in the Reagan administration, 20 pending nominees. The only modern president who even came close to Obama's numbers was Clinton, so Obama has between two and three times as many pending nominees right now as the modern Republican president.

BLOCK: And the time that it takes to win confirmation has grown with that number.

TOTENBERG: Yes. It's grown exponentially. The average number of days it took uncontroversial trial court nominees in the Reagan administration to win confirmation was 69 days versus 204 days in the Obama administration. In fact, even Obama nominees who are eventually confirmed by huge majorities or unanimous votes have consistently faced a slow walk that can last a year or two.

In the last three weeks alone, Republicans blocked three nominees to the U.S. Court of Appeals for the D.C. Circuit and in no case were there claims that the nominees were unqualified or even too liberal. Instead, Republicans were claiming that the D.C. Circuit does not have a caseload that justifies filling these slots, a claim that was contradicted by nonpartisan experts within the federal judiciary who track this kind of thing.

BLOCK: So Nina, where does this leave Republicans? Do they have any way to stop President Obama now?

TOTENBERG: Well, they certainly have the ability still to slow things down. Nominations generally have to go through the judiciary committee and there are all kinds of procedural ways to slow walk a nominee that have been used already and can be increased. Unless there's a quorum, there can't be a vote so that can all take much, much more time. But Republicans are worried. They will say privately that most of Obama's nominees have been pretty - within the liberal category - pretty mainstream.

Not the kind of thing that really upsets them with one or two exceptions. They're worried that the wraps are off now. And here, for example, is Senator Lindsey Graham today.

SENATOR LINDSEY GRAHAM: The political nature of who you pick changes because you're not going to have to accommodate anybody on the other side. So I think you'll see, over time, the flavor of the judiciary change.

TOTENBERG: And I guess we'll just have to wait to see on that one.

BLOCK: And Nina, the ramifications for Democrats now?

TOTENBERG: Well, for Obama, it's a big chance to actually get his nominees confirmed. He has been very slow in making nominations. We should say that. He'd better get moving because he'll run out of time. For red state Democrats, it's probably going to be an issue on which there will be money spent against them, and for Obama, it means that he can put into the pipeline, in case he ever actually gets another Supreme Court vacancy, he can put into the pipeline people he might want to nominate in the future for the Supreme Court.

BLOCK: And Nina, what do you make of the motivation of the Democrats? Why did they do this?

TOTENBERG: Well, as one Democrat put it to me today, the threat has always been if you do this to us, we will gum up the works and nothing will get done. But, said this Democrat, nothing's gotten done. It's like the threat to shoot the hostages when you've already shot the hostages and they figure - the Democrats felt like they'd already - they had hostages dead, they might as well go ahead. They had nothing to lose. And after all, the Republicans they figure aren't going to shut down the government again.

BLOCK: OK. NPR's legal affairs correspondent Nina Totenberg. Nina, thanks.

TOTENBERG: Thank you.

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