Senate Rules Reform ? the Weekly Recap, August 9, 2013

Washington, DC – Judicial nominations are emerging as a new battleground for Senate obstruction – prompting some observers, including Senate Judiciary Committee Chairman Patrick Leahy (D-VT), to call for Senate rules reform if three nominees to the DC Circuit are blocked from receiving a vote.  Among the key developments and related commentary:

  • The Wall Street Journal describes the impending battle over judicial nominees to the DC Circuit: “Back in July, Senate Majority Leader Harry Reid said he would consider the ‘nuclear option’ of changing the Senate's rules to prevent a filibuster of executive-branch nominees. A deal was struck to avert that outcome, but after the August recess Senate Democrats may be back on the conga line to threaten the nuclear option against judicial nominees.  According to Judiciary Chairman Patrick Leahy, in an interview with C-SPAN, the rules change could ‘come back on the table’ if Republicans filibuster any of President Obama's three picks for the D.C. Circuit Court of Appeals
  • Los Angeles Times editorial writer: “Harry Reid Should Be Ready to Go ‘Nuclear’ Over Judicial Nominees”: Michael McGough, an editorial writer for the LA Times, writes, “Last month, the Senate moved back from the brink of the ‘nuclear option,’ a parliamentary maneuver that would have allowed Democrats to confirm President Obama’s executive branch nominees without amassing the 60 votes needed to break a filibuster. Senate Majority Leader Harry Reid relented after Republicans agreed to allow votes on several Obama appointees…But now, Republicans are threatening to obstruct Obama’s nominees to an important appeals court. If they persist in their obstructionism, Reid should open the briefcase with the launch codes…

…[DC Circuit nominee Patricia] Millett is absurdly well qualified for the position, having argued 32 cases before the Supreme Court and 36 in the courts of appeals…The GOP argument that Obama wants to “pack” the court -- a la FDR’s attempt to add seats to the Supreme Court in the 1930s -- is a laughable exercise in projection. It’s the Republicans who want to manipulate the size of the D.C. Circuit to keep it from moving in a leftward direction, as it probably would with three Obama appointees. But that’s the way the system works. As Republican Sen. Lindsey Graham has pointed out, “elections have consequences.” One of those consequences is that a president gets to fill vacancies on federal courts. Yes, senators have the right to reject such nominees if they are unqualified or out of the mainstream, but Millett is neither.”

  • Political scientist Jonathan Bernstein writes in the American Prospect, “So what could make Democrats revisit the filibuster? On legislation, it would probably require either unified government or a belief that unified government (in their favor) is on its way. For judges, it’s likely a matter of degree. If Republicans, for example, do blockade some seats—refusing, for example, to confirm anyone to the D.C. Circuit Court of Appeals—then Democrats may reluctantly threaten again to go nuclear…It’s not so bad that the Senate is slow to react. Stable rules are good for democracies. But it’s also good to see that when norms are destroyed—and Republicans have certainly done that—senators will eventually take action. We’ll just have to see whether the July showdown has taught Republicans that pushing too hard has costs, or whether they will resolve to push even harder on Senate rules and norms in the future. For now, however, it seems possible that the Senate will be a bit more functional. Not great, but not so bad.”
  • Noam Scheiber writes in The New Republic: “Harry Reid Should Kill the Filibuster, for Real This Time”: Scheiber notes, “Up until three weeks ago, Senate Republicans had gone out of their way to block Obama’s highest-profile executive-branch nominees, typically for no other reason than that the president had selected them.  The GOP finally backed down after Majority Leader Harry Reid threatened to do away with the filibuster for such appointments, and seven nominees promptly sailed through the Senate. But the victory was fleeting. Last week, Republicans simply shifted their fight from the executive to the judicial branch, vowing to deny an up-or-down vote on all three of Obama’s picks for the critical DC court of appeals…Many Senate Democrats seem genuinely alarmed by the idea of a filibuster-less existence should they lose their fragile majority.  But these fears are way overblown. Democrats would be in a stronger position if they went ahead and abolished the filibuster—not just for cabinet appointees and judges, but for legislation, too. That should strike fear in the hearts of Republicans and, at the very least, ensure that Democrats get their way when the GOP obstructs their nominees.”
  • Wall Street Journal letter to the editor from law professor Carl Tobias – “Your Math is Wrong on the DC Circuit”: Tobias, a professor at University of Richmond School of Law, writes in response to a WSJ editorial supporting Sen. Grassley’s effort to reduce the size of the DC Circuit, “The D.C. Circuit’s Judicial Math” (Review & Outlook, July 25) omits several critical considerations from the equation. Nearly half of the court’s caseload comprises challenges to federal agency decisions. Many of these appeals have enormous records that can run to 50,000 pages and present complex issues of law, science and economics. In April, the U.S. Judicial Conference, the most respected authority on judgeship needs, which Chief Justice John Roberts chairs, officially recommended to Congress that the D.C. Circuit requires 11 judgeships. The federal court policy-making arm premises its recommendations on conservative estimates of work and case loads to which Congress has conventionally deferred.”