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June 05, 2013 7:17 AM Assumption that the GOP Will Blockade DC Circuit Is Probably Wrong

By Jonathan Bernstein

With the three DC Circuit Court of Appeals nominees finally getting named and sent to the Senate today, I’m seeing a lot of liberal pessimism about the next step. Kevin Drum says “We already know that Republicans are going to oppose all three of Obama’s nominees…because, based on its caseload, the DC Court is too big and should be pared back by three seats.” Matt Yglesias is even more convinced: “Note that precisely because the stakes are high here the odds of Obama succeeding are approximately zero.” I know when I write about the possibility of a GOP blockade in these seats, I regularly get comments hitting me for suggesting that such a blockade is only possible, not virtually certain.

I guess we’ll see soon enough, but I think this is wrong. For one thing, if Republicans really do choose to explicitly blockade the DC Circuit, it would almost certainly push Democrats over the edge into going nuclear. For another, the Republican record just hasn’t been one of blockading Appeals Court nominees. Yes, lots of foot-dragging, and yes, 60 votes are required for all of them, and yes, most draw some opposition…and, yes, a few have been defeated. But that’s all. The majority of Barack Obama’s appellate nominees have eventually been confirmed — and that’s true whether Republicans had 40 or 41 or 47 or 45 seats in the Senate.

Here’s my guess — not a prediction, but just a guess based on past patterns. We’ll continue to hear the insipid rhetoric about “court packing” and how the DC Circuit doesn’t need any judges anyway, but that will be mostly just background music for the rubes. One of the picks will get through fairly easily. One will be killed by filibuster. And the third will be a close call, but probably get through, perhaps with a few Republicans voting yes on cloture but against confirmation. Those opposing picks will mainly focus on claims that the nominees are out of the mainstream ideologically, or will allege lack of proper judicial temperament, or some other such reason — very few Republicans will claim that they are blockading the DC Circuit Court.

It’s a guess, not a prediction. But I do think it’s more likely all three will be confirmed than that all three will be defeated. Far more likely.

And what’s more…if the Judiciary Committee, Harry Reid, and Barack Obama are aggressive about the schedule, including a replacement if one of the current nominees is defeated by filibuster, then all three seats will be filled during the current Congress.

[Cross-posted at A plain blog about politics]

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Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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