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August 02, 2013 10:31 AM The Next Nuclear Tripwire?

By Ed Kilgore

So with the “deal” to allow an up-or-down vote on seven specific executive-branch confirmations having run its course successfully (though not without a near disaster on Labor Secretary Tom Perez and AFT director Todd Jones), all bets are off and the question is whether the Senate will return to a de facto 60-vote requirement for nominees. Unfortunately for those who oppose a more systematic kind of filibuster reform, the next cookie on the plate is going to be judicial nominations, where it’s unclear Harry Reid has the personal commitment or the support of his caucus in going nuclear.

Complicating the issue is the fact that the first judicial nominations due for a vote involve the D.C. Court of Appeals, that immensely influential “lower court” that sets precedents in cases involving federal agency actions. And while it might be difficult to secure 50 Democratic votes for a “nuclear option” on judicial nominations as a general proposition, the position being taken by most Republican senators on the DC Circuit—a flat opposition to filling vacancies at all in order to preserve its conservative tilt—might produce a backlash among Democrats.

TPM’s Sahil Kapur has the basics on this issue:

Senate Republicans are standing firm by their threat to block every one of President Obama’s nominees to the D.C. Circuit Court of Appeals, insisting on eliminating all three vacant seats on the country’s second most powerful court.
If they follow through, it could spark yet another nuclear showdown over filibuster rules.
The first of Obama’s three picks, Patricia Millett, was narrowly approved Thursday by the Judiciary Committee on a party line vote of 10-8. Every Republican voted against her, although they didn’t criticize her or take issue with her qualifications. They merely argued that the court is under-worked and that nobody ought to fill those seats….
Republicans appear to be united behind Sen. Chuck Grassley’s (R-IA) legislation to reduce the number of active judges on the D.C. Circuit court from 11 to eight. He proposes eliminating one seat, transferring one to the Second Circuit and transferring another to the 11th Circuit. (During the Bush administration, Grassley led a successful effort to reduce the size of the D.C. Circuit court from 12 to 11.)

You’d best believe that under-worked judges would not be a party-line Republican concern if the composition of the Circuit was different. As Eleanor Clift noted in June:

“There’s a lot of hypocrisy with this particular proposal,” says Adam Skaggs, senior counsel at the Brennan Center. He notes that Grassley was among those who voted unanimously to confirm Iowa public defender Jane Kelly to the Eighth Circuit Court, which by some metrics has the lowest workload of any of the circuits. “You can search long and hard for consistency around the stated justifications he’s (Grassley) put forth, and you’re not going to find it,” says Skaggs, who calls what Grassley is doing good, old-fashioned politics dressed up as court packing.

So the question is whether this argument can hold among Senate Republicans, and whether Democratic senators leery of a general position opposing filibusters of life-time judicial nominations might make an exception if the filibusters are being advanced on this type of specious ground rather than objections to the qualifications of individual judges.

The timing, with three DC Circuit nominations heading towards the Senate floor immediately after the August recess, is interesting. Will senators hear about this relatively obscure issue when they are back home? That’s hard to say. The “under-worked judges” claim isn’t likely to drive even the most ideological members of the GOP “base” to show up en masse at Town Hall meetings (where they are likely, in any event, to spend their passion on arguments for “de-funding Obamacare” as the goal of the autumn fiscal fight), and the concomitant argument that Obama is engaged in “court-packing” really doesn’t pass the smell test (how can you “pack” a Court by simply filling vacancies?). Still, conservative activists are typically more focused on the composition of the judiciary than their progressive counterparts.

It would be nice if Democratic senators known to be wobbly on filibuster reform—ranging from outright opponents like Carl Levin to more questionable cases like Mark Pryor and Reid himself—heard from progressives on this issue in August. I see no particular merit in the counter-argument that countenancing filibusters to preserve the overall ideological character of this or that federal panel is a weapon Democrats might want to use in the future. The kind of judges a Republican president is likely to nominate any time in the near future are going to have the track records and associations that make them debatable on their individual merits; our conservative friends will make damn sure of that.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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