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Filibuster Wars To Flare Up As Reid Moves On Top Judges

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AP Photo / Manuel Balce Ceneta

They intend to highlight her dynamic personal story -- as a military spouse, a lawyer who worked for Presidents Bill Clinton and George W. Bush and an accomplished Supreme Court litigator. They intend to attack Republicans for refusing to put qualified women on the bench, in part by citing the filibuster of Caitlin Halligan, Obama's earlier nominee to the same court. And they intend to bash Republicans as hypocrites for arguing now that the 9th, 10th and 11th seats on the D.C. Circuit court need not be filled after voting to fill them under Bush.

GOP senators argue the court is under-worked and have introduced legislation to reduce the size of its active bench from 11 to 8 judges. They say the D.C. Circuit has a lower caseload than other appeals courts and doesn't need the extra judges. Perhaps not coincidentally, Sen. Lindsey Graham (R-SC) on Monday vowed to filibuster every nomination until Democrats make survivors of the Benghazi attacks available to Congress.

Senate Minority Whip John Cornyn (R-TX) is calling for GOP unity against filling the vacancies.

"Republicans should remain united in blocking Senate Majority Leader Harry Reid's attempt to pack the D.C. Circuit Court of Appeals, which is America's second-most-influential judicial body," he opined last week. "Senator Reid has made no secret of his intent: Over the summer, he told Nevada Public Radio that Democrats were hoping to 'switch the majority' on the D.C. Circuit to make it a rubberstamp for big-government liberalism. Republicans have objected to this power grab, and we should continue to do so. Based on its caseload, the D.C. Circuit simply does not need more judges at the present time."

If Republicans hold to their threat and block a vote on Millett, Democrats may be forced to retaliate by threatening to change the rules -- for the third time this year -- via the "nuclear option," or to require judicial confirmations to garner a bare majority for confirmation.

"I have nothing against her but we should not be adding to that bench," Sen. Orrin Hatch (R-UT) told TPM back in August, before the budget wars took over Capitol Hill. Democrats retort that while the court's cases are extraordinarily complex and that therefore the caseload number is an inaccurate indicator of how hard it works.

"I hope those Senators will reconsider their double-standard and not play politics with an independent branch of government," Sen. Patrick Leahy (D-VT), the chairman of the Judiciary Committee, said earlier this summer.

Unlike with executive branch nominations, which by definition are temporary, Democrats would have a harder time finding 51 votes to eliminate the filibuster for judges -- some want to preserve the blocking power to use against a future GOP president. Republicans have shown no sign of letting up and have questioned whether Democrats would really go nuclear over judges.

House Republicans are lending their Senate counterparts moral support for a filibuster. The GOP-led House Judiciary Committee announced a hearing on Tuesday to discuss "whether the workload of particular U.S. Circuit Courts of Appeals justifies filling vacant judgeship positions." Chairman Bob Goodlatte (R-VA) accused the Obama administration of "leading a campaign pushed by partisan and ideological organizations that is designed to tilt the balance of Circuit Courts of Appeals in order to stack the deck in favor of an expansive regulatory regime and against Americans who challenge the power of the central government."

Sixty votes are required to break an attempted filibuster, and 51 for final confirmation; Democrats will have 55 votes once Sen.-elect Cory Booker is sworn in on Thursday. If confirmed, Millett would fill the seat vacated in 2005 by now-Chief Justice John Roberts. She's the next pending nominee on the Senate floor, and was approved by the Judiciary Committee on a party-line vote. Of the two other nominees, Nina Pillard has been approved by the committee (also on a partisan vote) and Robert Wilkens is expected to be cleared in the coming weeks.

The D.C. Circuit, which leans conservative, looms large in Obama's second term as it tends to have the final say on issues related to executive authority. It has invalidated various actions by the administration on matters ranging from labor and environmental regulations to recess appointments. It is also a frequent feeder to the Supreme Court -- four of the nine sitting justices were plucked from the D.C. Circuit.

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

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