Despite weakened filibuster, GOP senators have options

WASHINGTON — Two Californians proposed for the federal bench and two Texans offered as U.S. marshals are collateral damage, at least for now, in the suddenly escalated Senate confirmation wars.

Expect more of the same.

Senate rules provide other ways beyond the now-curtailed filibuster to obstruct nominees. Hearings can be boycotted. Routine procedural approvals can be withheld. New Capitol Hill ambushes can be plotted, perhaps with tactics not yet seen. For a truly motivated minority, losing one weapon means it’s time to pick up another.

“My sense is the Republicans are going to be putting up whatever roadblocks they can, though they don’t have the main roadblock they used to have,” Russell Wheeler, a judiciary expert at the Brookings Institution, said in an interview Friday.

Republicans already flexed their muscles Thursday, the same day Senate Democrats weakened the filibuster by a 52-48 vote. Under the new rules, executive branch and most judicial nominations will require only 51 votes to proceed rather than the 60 required for legislation and Supreme Court nominations.

Using the prior filibuster rules, Republican lawmakers thwarted nominees, including Goodwin Liu, a University of California, Berkeley, law professor nominated to the 9th U.S. Circuit Court of Appeals. After falling short on a 52-43 Senate vote, Liu withdrew his nomination and now serves on the California Supreme Court. More recently, Republicans used the 60-vote margin to block three nominees to the U.S. Court of Appeals for the District of Columbia Circuit.

Some believe the diminished filibuster will encourage presidents to nominate more controversial candidates. For nominees, the rules change will certainly mean quicker approval.

Republicans didn’t need the filibuster, though, to impede 10 nominees Thursday morning. The unhappy Republican senators simply ducked a committee meeting, thereby frustrating a planned Senate Judiciary Committee vote.

No specific controversy shadows Los Angeles-based attorney John B. Owens or San Francisco-based attorney Michelle T. Friedland. Friedland even clerked for former Supreme Court Justice Sandra Day O’Connor, a Republican who showed up for Friedland’s confirmation hearing. Both were nominated Aug. 1 to the 9th Circuit, which handles appeals in nine Western states. Both sailed through their recent confirmation hearings.

M. Douglas Harpool, a Springfield, Mo., attorney nominated to the bench in Missouri, and Edward G. Smith, an Easton, Pa.-based judge proposed for a federal court seat in eastern Pennsylvania, likewise, appear noncontroversial.

And Texans Robert L. Hobbs and Gary L. Blankinship, nominated to serve as U.S. marshals, have similarly excited no partisan rancor.

Nonetheless, the nominees are now hostages of the Judiciary Committee’s eight Republicans. Members of both parties have practiced the no-show tactic, but its deployment Thursday reminded all that even a weakened minority retains arrows in its quiver.

“The Republicans have gotten a lot more aggressive in fighting nominations,” Wheeler said.