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.
The GOP is certainly cruising for a procedural bruising on this issue. This week, all of the Republicans on the Senate Judiciary Committee voted against the nomination of Patricia Millett, a prominent appellate attorney in Washington, for one of three open seats on the U.S. Court of Appeals for the District of Columbia Circuit. That court has been a launching pad for future Supreme Court justices -- four of its alumni, including Chief Justice John G. Roberts Jr., now sit on the high court -- which is why nominees for the D.C. Circuit are often ambushed by the party not in the White House.
Millett is absurdly well qualified for the position, having argued 32 cases before the Supreme Court and 36 in the courts of appeals. So what’s the Republicans’ beef? For the record, it’s not that Millett or two other nominees to the court are unqualified. It’s that Obama is trying to “pack” the D.C. Circuit by filling vacancies that really don’t need to be filled because the court is underworked.
Sen. Charles E. Grassley, the ranking Republican on the Judiciary Committee, has introduced legislation to abolish the three seats Obama plans to fill and reallocate two of them to supposedly busier regional appeals courts. The Grassley bill is going nowhere in the Democratic-controlled Senate and would be vetoed even if it did pass.
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.
The party-line committee vote on the Millettt nomination suggests that Senate Republicans are planning to play chicken on judicial nominees in a way they weren’t willing to do with executive branch nominees. If they do decide to filibuster Millett or Obama’s other judicial nominees, Reid should drop the big one.