The Judicial Fight That Could Reignite Filibuster Reform

This artist rendering shows Deputy Solicitor General Sri Srinivasan addressing the Supreme Court, including Justices Samuel Alito, left, and Elena Kagan, right, in Washington, Wednesday, March 27, 2013, as the court ... This artist rendering shows Deputy Solicitor General Sri Srinivasan addressing the Supreme Court, including Justices Samuel Alito, left, and Elena Kagan, right, in Washington, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act (DOMA). (AP Photo/Dana Verkouteren) MORE LESS
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The upcoming debate over confirmation of U.S. Principal Deputy Solicitor General Sri Srinivasan to the country’s second highest court is seen by Democrats as a pivotal moment in the interconnected debates over gridlock of judicial nominations and Senate filibuster rules.

Srinivasan, President Obama’s nominee to fill the seat vacated in 2005 by now-Chief Justice John Roberts on the D.C. Circuit Court of Appeals, will appear before the Senate Judiciary Committee on Wednesday, where Republicans intend to quiz him on his judicial temperament and views on the Constitution.

“We haven’t had a new person on that court since 2006 or [200]7. Some say it’s a court more important than the Supreme Court of the United States. [Republicans have] blocked … new people coming on that court,” Senate Majority Leader Harry Reid (D-NV) told reporters Tuesday. “We’re going to have this young man — we hope that that can be done very quickly.”

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.

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