Senate Unlikely to End Filibusters For Supreme Court, Professor Says

, Legal Times

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Georgetown University Law Center professor Victoria Nourse
Georgetown University Law Center professor Victoria Nourse

The Senate is unlikely to eliminate the filibusters over U.S. Supreme Court nominees because the confirmation hearings are too high profile, a Georgetown University Law Center professor said last week.

“I don’t think there’s much political incentive to do that,” Victoria Nourse said during a discussion at the law school on Jan. 28. “If there is something that somebody cares about in terms of politics, and that would have an effect on your senatorial campaign, it would be how you voted on a Supreme Court nomination.”

Nourse knows about gridlock in the Senate over judicial confirmations: She was a senior advisor for Vice President Joseph Biden when he was chairman of the Senate Judiciary Committee. Two years ago, her nomination to the U.S. Court of Appeals for the Seventh Circuit was blocked at the Senate Judiciary Committee level.

Senate Majority Leader Harry Reid (D-Nev.) changed the rules last year to strip the minority party of its ability to block judicial and executive nominees. Some congressional watchers have predicted the move meant Democrats had opened the door to changing the filibuster rules for Supreme Court nominees as well.

Nourse said Reid narrowly tailored it to exclude the Supreme Court because there hasn’t been a problem regarding the filibuster of Obama administration nominees to the high court.

“Both the politics and the history of Supreme Court nominations have had an enormous amount of attention paid to them,” Nourse said. “It’s politically salient and it’s highly visible, and there’s no indication the process is blocked.”

On the flip side, less visibility for district and circuit nominees means they will be more susceptible to Republican delay tactics, Nourse said. She predicted the expanded use of the blue-slip process, where home-state senators can block a nominee the White House wants to push forward.

“I think you’ll see a shift to that terrain if someone is seen as ideologically outside the mainstream,” Nourse said. “They can be bottled up in committee very easily actually.”

Another way Republicans can delay nominations, Nourse said, is at the state-level before the White House has announced a nomination. In some states, commissions make recommendations to fill judicial vacancies.

“You can delay in the home state as well and that puts pressure on the president to determine how the president’s going to deal with those nominating commissions,” Nourse said. “That’s even less visible to some extent. It’s going to be very hard for people to actually see that happening in the same way you see the filibuster on the floor.”

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