In it, but not of it. TPM DC

The Judicial Fight That Could Reignite Filibuster Reform

AP Photo / Dana Verkouteren

Republicans recently forced Obama to withdraw his prior nominee to the powerful court, Caitlin Halligan, by filibustering her confirmation back in 2011 and again last month. The White House and Democratic leaders view Srinivasan, who has broad support among legal stars across the ideological spectrum, as a test case for whether the GOP will permit any nominee to be confirmed or whether they'd rather maintain the court's notoriously high vacancy rate in order to preserve its conservative lean.

Senate Minority Leader Mitch McConnell (R-KY) pushed back on the accusations of GOP obstinacy, arguing that Republicans "have treated the president's judicial nominees very, very fairly by any objective standard."

"We just today confirmed the 10th judicial nomination of President Obama's second term," he told reporters Tuesday at his weekly briefing. "At this point in President Bush's second term, he got zero judges. None. With regard to vacancies, about 75 percent of the vacancies that we have in the judiciary don't even have nominees."

All of those nominees were confirmed to courts less influential than the D.C. Circuit, where four of 11 active seats are vacant.

Reid has been ratcheting up the threats to weaken the filibuster with 51 votes mid-session if Republicans don't ease up. If they filibuster Srinivasan -- and they've offered no hints so far -- Reid will face growing pressure to revisit the rules.

"We have a number of judicial emergencies around the country. That means you have too many cases and not enough judges. So I'm watching very closely, as are the American people, how we fare on nominations," Reid said. He indicated that he isn't eager to change the rules with 51 votes, but left the door open to do so.

"Well," the majority leader said, "I hope that's not necessary."

Correction: This piece originally stated that the GOP had filibustered all of Obama's nominees to the D.C. Circuit Court of Appeals. In fact, Caitlin Halligan, who was twice filibustered, has been Obama's only prior nominee to that court.

About The Author


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 and follow him on Twitter at @sahilkapur.