IAALS Board Member Russell Wheeler Weighs in on Senate Rule Change

December 3, 2013

The U.S. Senate voted 52 to 48 to change its rules regarding use of the filibuster to block votes on nominees to the lower federal courts and executive branch positions. The filibuster had been used by both parties in the past to require three-fifths support, rather than a simple majority, to allow the Senate to vote on controversial presidential appointments. Senate leaders invoked the so-called "nuclear option" to make the rules change by a majority vote. This was the most significant change to filibuster rules since 1975, when the Senate reduced the threshold for ending debate from two-thirds to three-fifths.

The immediate impact of this development will be to allow votes on three nominees to the U.S. Court of Appeals for the D.C. Circuit whose appointments Republicans have blocked. Writing for CNN.com, IAALS Board of Advisors member Russell Wheeler suggested that the three will be confirmed "but at a cost" and referenced those who predict that abolishing the filibuster will have a long-term negative impact on the Senate as an institution.

Wheeler also highlighted some data in the partisan-fueled debate over the "D.C. three." Compared to the eleven other regional circuits, the D.C. Circuit hears a disproportionate number of cases with important policy implications, and filling its seats has been particularly contentious, with the Senate in the past refusing to confirm two appointees each of Presidents Clinton and George W. Bush. Currently, four of the D.C. Circuit's eight active judges were named by Democratic presidents and four by Republican presidents--a fact that largely fueled the recent Senate fight over whether Obama should fill the court's three vacancies and the eventual rules change. Wheeler noted that "numerous empirical studies" demonstrate that the party of a judge's appointing president is an indicator, albeit a weak one, of how the judge will decide cases involving hot-button issues.