Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

Abstract

131 Harvard Law Review 96-132 (2017)Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness work in constitutional politics.Part I examines recent conflicts in judicial appointments, beginning in the George W. Bush administration and running through the 2017 elimination of the filibuster for all nominees. It focuses on the discourse surrounding these reforms, noting that at every turn, accusations of "unprecedented" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts — two precedential pathways — for recent events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some available pasts to others.

Going Nuclear: Federalist Society Affiliated Judicial Nominees’ Prospects and a New Era of Confirmation Politics1

“…15 which reduced the amount of time for debate after cloture was invoked on district court nominees. This resolution set the stage for the first “nuclear option,” enacted in November 2013, by sustaining the decision of the chair on Majority Leader Harry Reid’s (D-NV) point of order that a majority vote could invoke cloture on nominations to Article III courts (excluding the Supreme Court) (Ba et al, 2020; Chafetz, 2017; Whittington, 2017). At the end of the congress, the Senate allowed the reduced vote threshold to stand but reset the post-cloture debate times back to the pre-November 2013 standard.…”