Senate Rules Reform ? the Weekly Recap, September 13, 2013

Washington, DC – Obstruction and rules reform remain key topics for discussion as the Senate continues to consider judicial nominations this week.

On Wednesday, the Senate Judiciary committee held a hearing for D.C. Circuit Court nominee Robert Wilkins, one of three nominations made by President Obama. Earlier in the week, a conservative federal appellate court judge debunked Senate Republicans’ long-standing argument for preventing a full bench at the D.C. Circuit Court.

Nevertheless, Senate Republican plans to obstruct President Obama’s slate of nominees is expected to trigger an upcoming floor battle with Senate Democrats, prompting observers to speculate whether Senate rules reform will re-emerge as an issue.

Meanwhile, opinion leaders continue to highlight the crisis of judicial vacancies hindering courts across the country. According to the Washington Post’s Jonathan Bernstein, the number of empty posts needed to be filled is nearing 100. Despite this, Senate Republicans on Thursday delayed a committee vote on a judicial nominee to a U.S. District Court in Concord until next week.

See below for commentary and analysis of this week’s developments:

  • Jonathan Bernstein, Washington Post: “The basic story: Republicans claim no personal objection to Robert Wilkins, but Chuck Grassley and other Republicans are still threatening to block all nominees to that court, based on a laughable theory that the slots don’t need to be filled — a theory that suddenly emerged once Obama began nominating people to fill the vacancies, and one that will most certainly dissolve as soon as a Republican is in the White House.

“We will soon see whether Republicans back up that theory with unified-party filibusters; if so, Harry Reid and the Democrats will have little choice but to fight back, as they did on executive-branch nominations, by threatening majority-imposed reform."

  • Ian Millhiser, Think Progress: “Judge Tymkovich, however, was at the Senate in his capacity as chair of the federal judicial committee that evaluates which federal courts are truly in need of additional judgeships — i.e. which courts are overworked and which courts are underworked. Tymkovich’s committee did not recommend eliminating a single seat — much less three — from the DC Circuit. Nor did it recommend that seats be added to the Second and Eleventh Circuits, as Grassley has proposed. It did recommend adding two federal appellate seats, but its recommendation was that these seats should be added to the Sixth and Ninth Circuits. In other words, a neutral panel of judges led by a staunchly conservative Bush appointee evaluated the judiciary’s needs and came up with numbers that in no way resemble Grassley’s recommendation.”
  • David Hawkings, Roll Call: “Beyond that, Republicans are keenly aware that confirming any of the president’s picks would likely tilt the court’s ideological center of gravity to the left after several years weighted to the conservative point of view. Like the session in July when the panel heard from Millett, Republicans signaled they would have nothing substantive to say in opposition to the nominee but would instead focus all their confirmation objections on the argument that the seats they would fill should be left vacant.”
  • Todd Ruger, Legal Times: “Wilkins is expected to win committee approval, but the toughest part of the political fight over the D.C. Circuit is yet to come: the Senate floor debate. If Democrats can convince enough Republicans to change the rules or overcome a Republican filibuster, then the nominations could move quickly. But if they can't, the nominations could be stalled indefinitely.”
  • Caroline Frederickson, President of the American Constitution Society, as reported in Legal Times: "The D.C. Circuit has a complex, high-impact caseload that is in desperate need of a full bench of judges … The Senate must now give Judge Wilkins, along with Nina Pillard and Patricia Millett, fair and timely votes as they are nominated to one of the most powerful courts in the country.”