In theory, the Senate fight over judicial nominations looked like it'd be resolved by the so-called "nuclear option." Last fall, the Senate Democratic majority restored majority rule to Obama administration nominees, which meant jurists who could muster 51 votes would reach the federal bench.
Except in practice, that's not what happened. As Edward-Isaac Dovere explained
, there's still a "blue slip" problem to keep in mind, and it's raising the specter of a "new nuclear option."
The clock is ticking: The Senate's less likely to vote on any nominees as the November election draws nearer, and a possible Republican takeover of the Senate is looming large. But White House counsel Kathy Ruemmler and others in the administration are currently caught between their own exasperation and their wariness about a direct challenge to Judiciary Chairman Patrick Leahy (D-Vt.) -- the one and only man who could peel away the next layer of Senate control over nominations.
According to the way the Senate has traditionally worked, the blue-slip process requires both of a state's U.S. senators to sign off on judicial nominees from their home state. If not, the nominee never even gets a hearing in the Judiciary Committee, even if he or she has the support needed to be confirmed on the Senate floor.
You probably see the problem -- it's created conditions in which the only nominees who can receive votes are the ones who come from states with two Democratic senators. In states with one or two Republican senators, judicial nominees get stuck -- the GOP doesn't need to filibuster them, the party can simply block these nominations in their infancy. (In a couple of cases, Republicans are using blue slips to block nominees they'd personally endorsed
But the process doesn't have to work this way. Vermont's Pat Leahy, the Judiciary Committee's chair, is choosing to honor Senate norms, which in turn empowers the GOP minority to block all kinds of nominees.
Leahy could simply choose a different course -- and there's some precedent for him doing exactly that.
Republicans, predictably, are outraged by the very idea of Leahy ignoring the blue-slip tradition. Sen. Lamar Alexander (R-Tenn.), perhaps best known for filibustering Obama judicial nominees after giving his word that he would never filibuster a judicial nominee, told Politico, "There's no basis for this kind of contempt for the traditions of the United States Senate, and it's disgusting to me that it's even being talked about."
Oddly enough, Republicans weren't disgusted at all when they were in the Senate majority and -- you guessed it -- they manipulated the blue-slip tradition
to advance their partisan interests.
* In 1998, for no special reason, Orrin Hatch decided that only one senator needed to object to a nomination. This made it easier for Republicans to obstruct Bill Clinton's nominees. * In 2001, when one of their own became president, Hatch suddenly reversed course and decided that it should take two objections after all. That made it harder for Democrats to obstruct George Bush's nominees. * In early 2003, Hatch went even further: senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it would still go to the floor for a vote. * A few weeks later, yet another barrier was torn down: Hatch did away with a longtime rule that said at least one member of the minority had to agree in order to end discussion about a nomination and move it out of committee.
Leahy, right or wrong, has tried to honor the process the way it used to work before Hatch started playing partisan games. But in practice, as the White House keeps arguing, Leahy's respect for tradition creates an opportunity for Republicans -- who have no use for such niceties -- to exploit.
Leahy and Senate Democratic leaders are reportedly mulling over how, and whether, to act. Keep an eye on this one.