The Senate today voted for the "nuclear option"--setting the stage for confirmation of President Obama's judicial nominees by majority vote. Here is the New York Times story, the Politico story, and the Washington Post story. David Law & I wrote about this issue from a pivotal politics (positive political theory) perspective in Judicial Selection, Appointments Gridlock, and the Nuclear Option. When we wrote, both the President and the majority in the Senate were Republican--today the situation is reversed.
The implications of today's vote may be profound over the long run. Although Republicans were filibustering all democratic nominees to the D.C. Circuit, irrespective of their particular ideology, for the putative reason that the D.C. Circuit does not require additional judges, the normal effect of the filibuster is to select for judges who are either a) political moderates or b) motivated by the desire to comply with the law--so long as one ideologically cohesive party does not control 60 or more votes in the Senate. Without the filibuster, if the President and a simple majority of the Senate prefer ideological judges with a realist orientation toward the rule of law, their preferences will be realized.
But, and this is a big but, the rules that were approved today do not apply to the Supreme Court. This is important, because the evidence for ideological influence on the Court of Appeal is actually very weak. As Epstein, Landes, and Posner wrote in their recent book, The Behavior of Federal Judges:
“The difference [in liberal versus conservative voting between judges nominated by Democratic Presidents and those nominated by Republicans] is so small that one might wonder why any fuss is made in Senate confirmation hearings about the ideological leanings of nominees for court of appeals judgeships” (168).
Nonetheless, even small differences in overall voting record may be important with respect to particular cases that are politically salient, and without the filibuster, it is possible that the differences will grow.
The impact of today's vote will be complex, and I look foward to the analysis that will emerge from legal theorists and political scientists.