Senate Republicans escalated the showdown over the nuclear option in dramatic fashion Tuesday with a second consecutive filibuster of a top judicial nominee, daring Democrats to put up or shut up when it comes to changing the rules.
Nina Pillard, President Barack Obama’s nominee to the powerful D.C. Circuit Court of Appeals, received 56 votes to move forward, short of the 60 needed to break a filibuster. Two weeks ago, Republicans filibustered Patricia Millett to the same court. A third nominee, Robert Wilkins, is expected to have the same fate in a vote that has yet to be scheduled.
Sen. Chuck Grassley (IA), the top Republican on the Judiciary Committee, taunted Democrats who are “clamoring for rules change” to go ahead and pull the nuclear trigger, warning that it would make it easier for a future GOP to nominate judges in the mold of Justices Antonin Scalia and Clarence Thomas.
“All I can say is this — be careful what you wish for,” he said Tuesday. “If the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we’d love to put on the bench.”
Senate Majority Leader Harry Reid (D-NV) emphasized Pillard’s qualifications as a Georgetown law professor who has argued nine cases before the Supreme Court. He stressed that it’s the third female nominee — including Millett and Caitlin Halligan — that the GOP has filibustered to the D.C. Circuit court for “nakedly partisan reasons.”
“Republicans claim the court doesn’t need 11 judges,” Reid said. “But that’s not what they said when President Bush filled several vacant seats on the court. When George W. Bush was President, Senate Republicans happily filled the 9th, 10th and 11th seats on the D.C. Circuit — the same three seats President Obama seeks to fill today — even though the court had a smaller caseload at the time.”
The D.C. Circuit court leans conservative and looms large in Obama’s second terms as it often has the final word on major executive actions including health care, climate change and labor regulations. It recently overturned the mandate under Obamacare for insurance plans to cover birth control. Republicans have argued that none of the three vacancies on the court ought to be filled because its caseload is too light, to which Democrats have responded that the cases it takes are unusually complex.
Senate Minority Leader Mitch McConnell (R-KY) called the effort to fill the judicial vacancies on the D.C. Circuit “a political exercise designed to distract the American people from the mess that is Obamacare, rather than try to fix it.”
The GOP’s refusal to let up on the mass blockade leaves Democrats with few options. They can confirm the judges by scrapping the filibuster with 50 votes; they can cut a deal to reduce the size of the court and perhaps confirm one or two nominees, or they can back down.
Norm Ornstein, a congressional expert at the conservative American Enterprise Institute, told TPM that the GOP’s mass filibuster of D.C. Circuit nominees is unprecedented and an attempt at “nullification.” If Republicans don’t let up, he said, then “then I don’t see much other choice” for Democrats other than to go nuclear.
“In previous cases it was the minority party filibustering nominees they judged were not mainstream,” Ornstein said. “There’s no case even being made that these nominees aren’t qualified. We’ve never seen that before. … I just think it’s ridiculous. Absolutely ridiculous.”
