If We Can’t Have It, You Can’t Have It Either

Barack Obama on Monday, April 15, makes a statement to the press at the White House following explosions near the finish line of the Boston Marathon.
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There’s a lot of backstory to today’s showdown in the Senate over President Obama’s nominees to DC Circuit Court of Appeals. Sahil Kapur reports on much of it here. There’s no question that the showdown implicates the filibuster, or the abuse thereof by minority Republicans. We have more on the historical trendlines on the filibuster of judicial nominees here.

But there’s more to this particular face-off than the usual opposition to judicial nominees or the fight over whether the use of the filibuster has crippled the Senate. In this case, the underlying battle is just as if not more important than the supposedly larger issues it implicates.

What’s happening in this case is Senate Republicans are blocking wholesale the confirmation of any new judges to the D.C. Circuit Court of Appeals. The reason is simple: The D.C. Circuit tilts conservative right now and so long as the empty seats on the bench remain empty, that conservative tilt remains.

Republicans — and the anti-regulation crowd they represent — are particularly concerned about the D.C. Circuit because it has jurisdiction over many of the rules and regulations that the federal government writes. That makes it the front line in the battle between regulators and the regulated, between consumers and business, and between the liberal and conservative legal establishments over the scope and power of the administrative agencies who implement the laws Congress passes.

Republicans have now transcended the usual political debate over who should occupy the seats on this court and moved into the realm of blocking anyone nominated by a Democratic president, regardless of their merit or qualifications, from sitting on the court. It’s a scorched earth policy. If we can’t have it, you can’t have it either.

Republicans now prefer to break the court than let Obama exercise his constitutional prerogatives. To try to obscure this fact, Republicans have invented basically from whole cloth an argument that there are too many judges on the D.C. Circuit, that there’s not enough legal work for them. No matter that the law provides for the current number of seats on that bench. Senate Republicans don’t have the votes to change the law. And that’s not even getting into the chronic underfunding and understaffing of the federal judiciary writ large.

One of the many ironies of this showdown is that Republicans have begun accusing President Obama of trying to “pack the court,” which is a phrase with powerful historical connotations that have zero bearing here. It’s like arguing that the Voting Rights Act is a tool for discriminating against white people. Argue the precise opposite of the truth and you confuse the casual observer.

It should be mentioned that Republicans let a D.C. Circuit confirmation through earlier this year, as part of a deal to get some Obama nominees through in the face of threats from Harry Reid to change Senate rules to weaken the filibuster. This whole mindset of “if we can’t have it, we’ll break it so you can’t have it either” manifested itself then, too. Senate Republicans at that time wouldn’t allow the confirmation of anyone to head the Consumer Financial Protection Bureau or to fill the vacancies on the National Labor Relations Board.

If we can’t have it, you can’t have it either — and we don’t care if we break it.

That’s where the Tea Party crowd that preferred shutdown to negotiations, default to compromise was, too. It’s all of a piece.

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