The Next Filibuster Reform Test?

We’ve reached a point in the power struggle between the White House and Senate Republicans where it’s unclear whether President Obama can get a judicial nominee supported by Ken Starr — yes, that Ken Starr — confirmed to a federal appellate court.

In this case it’s because the court in question is the D.C. Circuit — the second most powerful court in the country. It’s not the Supreme Court, so a Senate minority can largely avoid scrutiny when filibustering its nominees, but its cases are of national importance, so it’s in the GOP’s interests not to allow Obama to fill its four vacancies. Which means the court is hobbled.

But the broad ideological consensus behind Sri Srinivasan will test the GOP’s willingness to abuse its advise and consent power. And if they filibuster him, it will help determine whether theres some threshold level of obstruction that goes too far for Senate Democrats.The rules tweaks Democrats and Republicans agreed to at the beginning of this Congress have been comically ineffective. It only took a few weeks for Democrats to start whispering about reviving filibuster reform. But talk is cheap. It’s clear that Democrats won’t go there unless they feel they have to.

My hunch is that the forcing issue for Democrats will have to be something sui generis, which is why I still think the GOP’s threat to filibuster Richard Cordray’s nomination to direct the Consumer Financial Protection Bureau — and not their handling of Circuit Court nominees — is the thing to watch.

Obviously killing Srinivasan’s nomination would be absurd. But John Roberts’ old seat on the DC Circuit has been vacant for eight years. That’s a shame, yet after such a long time, it’s hard to imagine it becoming the thing that tip the scales for frustrated Democrats.

CFPB, by contrast, is a new legacy issue for Obama and the Democratic party. It’s important to the party that the agency take root and flourish and it probably can’t do that without a confirmed director. So it’s harder for me to imagine Democrats idly letting Republicans cripple it than allowing them to block qualified nominees to the DC Circuit.

But who knows — maybe I’ll be proved wrong.