Republicans appear to be united behind Sen. Chuck Grassley's (R-IA) legislation to reduce the number of active judges on the D.C. Circuit court from 11 to eight. He proposes eliminating one seat, transferring one to the Second Circuit and transferring another to the 11th Circuit. (During the Bush administration, Grassley led a successful effort to reduce the size of the D.C. Circuit court from 12 to 11.)
"It's way overstaffed," Sen. Jeff Sessions (R-AL), another Judiciary Committee member, told TPM on Thursday. "It does not need these judges, and we don't have the money."
Democrats flatly dismiss the Grassley effort as a ploy to maintain the strong conservative tilt of the court, which often has the final word over the constitutionality of executive power decisions and has invalidated various executive actions by President Obama, on issues like labor and environmental regulations and recess appointments. They argue that despite the court's relatively low caseload, it takes extraordinarily complex cases.
"The D.C. Circuit decides some of the most important cases in our nation, with significant impact on the lives of all Americans," said Senate Judiciary Chairman Patrick Leahy (D-VT). "This court must be allowed to operate at full strength, and to that end, I applaud the Judiciary Committee's approval of Patricia Millett's nomination today."
Millett's nomination is headed to a full Senate vote after the August recess, and Obama's two other nominees -- Cornelia Pillard and Robert Wilkins -- are also making their way there. If Republicans stand by their threat and filibuster, it'll leave Democrats with a tough choice: either back off and concede defeat, or threaten to roll back the filibuster on a partisan basis via the nuclear option and confirm the judges by themselves.
Democrats' problem is they don't have the 50 votes needed to go nuclear on judicial nominations -- for now. A number of senators, especially supporters of abortion rights, worry about what a future Republican president and Senate majority might do with that power. If Republicans filibuster Millett, Senate Democrats face significant pressure to invoke the nuclear option from liberal advocacy outfits like Fix The Senate Now, which is already gearing up to push Democrats in that direction.
Democrats' other option is to negotiate with Republicans to let some, if not all, of the nominees through. But that would be difficult given what's at stake, unless party leaders can credibly threaten to change the rules if Republicans maintain their blockade.
When TPM asked Sessions if Republicans should worry about Democrats potentially going nuclear, he smiled, as if to preemptively call bluff.
"Unless Democrats are prepared to say they'll never filibuster a federal judge or never filibuster a cabinet person, I don't think that their threat should be given much weight," Sessions said. "If they say [Republicans can't filibuster nominees] then they'll bind themselves to that if we have a Republican president."
Democrats may be able to pick up a few Republican votes. Sen. John McCain (R-AZ) told TPM on Wednesday that he would support cloture on the nominees unless there were "extraordinary circumstances" that merited a filibuster. But it'd be a struggle to get to 60 votes as even the most moderate Republicans are inclined to side with their party.
"I am a supporter of Senator Grassley's bill to reallocate the judgeships," Sen. Susan Collins (R-ME) told TPM. "But that obviously is not going to pass, so I will consider each of the judges on the basis of his or her merits."