The real risk that Republicans will win control of the Senate should be motivating President Obama to nominate liberal judges at a fast clip, and Senate Democrats to confirm them just as quickly. Why eliminate the filibuster for all non-Supreme Court nominations, as Harry Reid did late last year, only to hand the minority party control over the federal bench?
But for reasons that are difficult to explain and even harder to justify, we're instead witnessing the bizarre spectacle of House Democrats, including civil rights hero John Lewis, submarining an anti-gay confederate sympathizer whom Obama nominated for a federal judgeship.
If you're thinking there must be more here than meets the eye, you're correct. This is actually a story about Democrats misjudging the GOP's reaction to the nuclear option, and (thus far) failing to take further steps to assure that Republicans don't use different filibuster rules to keep liberal judges off the bench. But it's also a reminder that the American right is in thrall to revanchist reactionaries, and there may thus be a way for Democrats to hoist Republicans with their own petard.
The nominee in question is Michael Boggs. As a state legislator in Georgia a decade ago, Boggs voted to keep a Confederate insignia on the state flag and to amend the state constitution to ban gay marriage. Among other things. And yet, here he is, just a few procedural steps away from a lifetime appointment to a U.S. district court. If Mitt Romney had won the presidency it's hard to imagine him nominating this guy.
But Obama did. And he did so because while Democrats abolished the minority's ability to set supermajority thresholds for most presidential nominees, they continue to respect a precedent (the "blue slip process") that allows individual senators (including senators in the minority) to effectively veto judicial nominations from within their states. So, of course, once Reid went nuclear, Republicans went blue slip crazy, and commandeered Obama's ability to confirm judges in red and purple states.
Boggs (along with three other conservative nominees) was the price Georgia's senators demanded to sign off on two liberal picks, and now Democrats in Congress have to figure out what to do about it.
"I do not support the confirmation of Michael Boggs to the federal bench," Lewis said—a high-profile indication that Boggs' nomination is on the rocks. "His record is in direct opposition to everything I have stood for during my career, and his misrepresentation of that record to the committee is even more troubling. The testimony suggests Boggs may allow his personal political leanings to influence his impartiality on the bench. I do not have a vote in the Senate, but if I did I would vote against the confirmation of Michael Boggs.”
The first, and most obvious lesson here is that if Republicans are abusing the blue slip process, Democrats—and specifically Judiciary Committee Chairman Patrick Leahy—shouldn't feel obliged to honor it.
But in this instance Republicans abused the blue slip process to promote precisely the sort of person the party's leaders want—but just can't seem—to marginalize. A Cliven Bundy for the courts, but with better media training.
At this point it may be too late for Democrats to force Republicans choose between rebuking Boggs and turning him into another controversial conservative martyr. The scrutiny is so intense right now that I can imagine him requesting to be withdrawn, or the committee declining to report out his nomination.
But there's a strong argument for getting the entire Senate on the record.
Boggs is an Obama nominee, but only in the most technical sense. He's the GOP's guy—the kind a lot of conservatives hope will rule the courts some day. Republicans thought they could sneak him on to the bench with little fanfare. But if Democrats elevate his nomination, only to oppose him unanimously, they'd be pitting the right's ideological commitments against the Republican party's immediate political imperatives. The outcome would be instructive either way, and could be politically advantageous as well.
Which is probably why one of the Republicans responsible for the Boggs pick is signaling that he wouldn't be too upset if the Democrats scuttled his nomination before the full Senate had a chance to weigh in.
“Our deal was that the committee would hear all seven of them and the committee would vote whichever way they vote,” Georgia Senator Johnny Isakson told the Huffington Post’s Jennifer Bendery Thursday. “Beyond that, there was no deal.”
Brian Beutler is a senior editor at The New Republic.