Earlier this week, Senate Republicans successfully blocked the nomination of Robert Wilkins to the Court of Appeals For The District of Columbia Circuit via the now familiar method of the procedural cloture vote, which in this particular case fell seven votes short of the 60 votes needed to advance the nomination. This was the third of three nominations to what is typically seen as the most prestigious and important of the Circuit Courts of Appeal that have been blocked in the last month, with the nomination of Patricia Millett having been blocked in late October and the nomination of Nina Pillard having been blocked just last week. The arguments used by both sides were particularly interesting, because underlying them is the fact that the D.C. Circuit Court of Appeals is both important due to the number of cases involving the Federal Government that this court hears, and due to the fact that it has been traditionally seen as a stepping stone to the Supreme Court itself. Indeed, of the nine Justices currently on the Court, all but one formerly served on a Circuit Court of Appeals and four of those remaining eight (Roberts, Scalia, Ginsburg, and Thomas) came from the D.C. Circuit Court of Appeals. Additionally, given the current makeup of the Circuit Court, there’s the perception that President Obama’s appointments would tip the balance on the Court slightly to the left. The argument, though, has been about whether these three appointments were actually necessary. Democrats contend that they are, of course, and Republicans say that they are and argue that one or more of the Judgeships on the Court out to be eliminated due to the Court’s decreased case load. Oddly, though, both sides are using the same caseload numbers to make their argument and it’s hard to tell which side is actually right.
In either case, though, the political issue has once again turned to the question of the use of the filibuster/cloture motion to block judicial nominee, and once again we’re at th point where Senate Democrats are again threatening to “go nuclear” in order to push the President’s nominees through the Senate:
WASHINGTON — Senate Democrats are on the verge of moving to eliminate the use of the filibuster against most presidential nominees, aides and senior party leaders said Wednesday, a move that would deprive Republicans of their ability to block President Obama’s picks for cabinet posts and the federal judiciary and further erode what little bipartisanship still exists in the Senate.
Senator Harry Reid of Nevada, the majority leader, is poised to move forward on Thursday with a vote on what is known on Capitol Hill as the “nuclear option,” several Democrats said. Mr. Reid and the senators who have been the most vocal on stopping the Republican blockade of White House nominees are now confident they have the votes to make the change.
“We’re not bluffing,” said one senior aide who has spoken with Mr. Reid directly and expects a vote on Thursday, barring any unforeseen breakthrough on blocked judges.
The threat that Democrats could significantly limit how the filibuster can be used against nominees has rattled Republicans. Senator John McCain, the Arizona Republican who has brokered last-minute deals that have averted a change to filibuster rules in the past, visited Mr. Reid in his office on Thursday but failed to strike a compromise.
Senator Charles E. Grassley of Iowa took to the Senate floor and denounced Democrats, saying that if they changed the rules, Republicans would consider them applicable to all judicial nominees, including those for the Supreme Court. Mr. Reid has said he supports keeping intact the minority party’s ability to filibuster controversial Supreme Court nominees.
“Apparently the other side wants to change the rules while still preserving the ability to block a Republican president’s ability to replace a liberal Supreme Court Justice with an originalist,” Mr. Grassley said.
Senate Democrats appear ready to take a step that members of each party have threatened for the better part of a decade, but have not taken, in part because of the political disruption it would create. But senators know this year’s majority could be tomorrow’s minority, yearning for the filibuster as a weapon.
We’ve been here before, of course. Both at the start of the 112th Congress in 2011 and the start of the 113th Congress this past January, Senate Majority Leader Harry Reid was being urged by Senators on his side of the aisle to use the start of a new Senate session to push through a filibuster reform plan. On both occasions, Reid ended up backing down from the threat in exchange for modest reforms in Senate ruled agreed to by Republicans. Then just this past July, we were in much the same position we appear to be in now, with Senator Reid appearing to threaten to “go nuclear” over votes on nominations to the National Labor Relations Board, only to end up reaching a deal with Republicans that allowed votes on those nominations to go forward.
This time around, though, things are supposedly different. As Greg Sargent noted earlier this week, Senator Reid is allegedly convinced this time that reforming the filibuster rules, at least as they apply to judicial nominations, is they only way that the Senate would be able to move forward on any of President Obama’s nominees, especially when it comes to nominees to the Circuit Courts, where a great deal of the “grunt work” of working out new Constitutional issues and applying Supreme Court precedent actually goes on. Additionally, there are at least some reports that longer serving Democratic Senators who had previously opposed the nuclear option because of its threat to Senate tradition and comity have come around to support the position of the younger members of the caucus when it comes to filibuster reform, the most public example of this being California’s Dianne Feinstein. This, along with other signs have lead to yet another round of breathless anticiapation about what would, not unarguably, be a “fundamental” shift in the nature of how the Senate operates, at least when it comes to certain matters.
For those of us who’ve been here before, though, it’s hard not to be just a bit cynical about all of this. As I noted above, we’ve been through this before during the Obama years, and we’ve went through it a big way during the Bush years when the Republicans who then controlled the Senate threatened to do exactly what Democrats are threatening to do now due to Democratic filibusters of Bush judicial nominees, including nominees to the D.C. Circuit Court of Appeals. In the end, each of those cases ended up getting resolved by some kind of deal that avoided the majority in question from going forward with the so-called “nuclear option.” Given that, the safe bet seems to be that this is exactly what will happen this time around. Perhaps this time will be different and there will be some kind of real filibuster reform, but history tells us otherwise and, when it comes to the Senate, history has always been a much better guide than the latest round of “We’re not bluffing” from whichever party happens to control the Senate majority.
Update: Senator Reid did indeed go with a (limited) “nuclear option.” Details here.
