At the confirmation hearing Wednesday, Sens. Chuck Schumer (D-NY) and Sheldon Whitehouse (D-RI) accused the GOP of violating the January rules change agreement when they last month filibustered President Obama's prior nominee to the powerful court, Caitlin Halligan.
"If we'd done [the nuclear option] then [Miguel] Estrada would be on the D.C. Court right now and maybe on the Supreme Court," Grassley said. "We had seven cloture votes on Estrada. A perfect record, but no, a Hispanic couldn't be appointed by a Republican, because he might be on the Supreme Court. So we were stupid for not doing it before if they're going to do it now."
In a politically charged battle with the newly elected President George W. Bush, Senate Democrats' repeatedly filibustered Estrada, citing his lack of judicial experience, and forced him to withdraw. In 2005, after Democrats filibustered more of President Bush's nominees they labeled extreme, then-Republican Majority Leader Bill Frist (R-TN) threatened to weaken that power with a bare majority. He dropped that threat once Democrats eased their blockade. Bush ended up confirming four nominees to the D.C. Circuit court -- including now-Chief Justice John Roberts. President Obama hasn't been able to confirm any yet. Four of 11 active seats on the court are vacant.
Democrats say Srinivasan, who has worked as a lawyer in the Bush and Obama administrations, is a test case of whether Republicans will permit anyone on the court during Obama's presidency, citing his endorsements from across the ideological spectrum. The India-born, Kansas-bred, Stanford-educated JD/MBA is the deputy solicitor general and is already being floated as a possible Supreme Court justice.
"My view is that the [rules change] agreement has now been broken," said Whitehouse, referring to the January reforms to the Senate rules. "And that opens to the door to, as far as I'm concerned, the nuclear option."
In recent weeks, Democratic leaders have repeatedly threatened to go nuclear on filibuster reform if the filibusters of nominees continue. Republicans could buy plenty of goodwill by simply letting Srinivasan receive a vote -- and they left that door open.
Republicans on the committee asked tough questions of Srinivasan's judicial philosophy and views of the Constitution, which aren't well known. Several used the hearing a proxy to criticize the White House for its legal approach to the Defense of Marriage Act and voting rights laws. They appeared to be broadly impressed by Srinivasan's qualifications but wouldn't commit to letting him receive a vote. They appeared particularly pleased when the nominee told them he doesn't believe in a "living Constitution."
"The Constitution has an enduring fixed quality to it," Srinivasan said. "It's one of the geniuses of the Constitution."
Sen. Orrin Hatch (R-UT) said he was "bothered" by the the Solicitor General's office's decision to stop defending DOMA, but he didn't seem to hold it against Srinivasan. "Listen, I'm really impressed with you. I think you're terrific," Hatch said. "I think you're going to make a great court of appeals judge and I intend to support you based on [our discussion today]."
After his questioning, Sen. Ted Cruz (R-TX) praised Srinivasan for "the fine job you're doing."
During the hearing, Grassley pushed back on Democrats' insistence that a nominee is urgently needed on the court, saying the D.C. Circuit is the "least busy circuit in the country" and announced new legislation cosponsored by seven Republican that would reduce the number of active seats on the D.C. Circuit from 11 to eight. It's unclear if the bill will gain much traction. Afterward, the ranking member wouldn't say whether he'll let Srinivasan receive an up-or-down vote but voiced no issues with him.
"I think it went very well," Grassley later said of the hearing. "I think he's qualified."
Correction: Grassley is ranking member of the Senate Judiciary Committee, not chairman.