In June, President Obama nominated three qualified jurists to serve as judges on the D.C. Circuit, generally considered the nation’s second-most important federal bench. Each one of the nominees has excellent credentials, each one of the nominees sailed through the Judiciary Committee without incident, and each one of the nominees enjoys the support of a majority of the U.S. Senate.
Senate Republicans on Monday denied President Obama his third nominee in recent weeks to the nation’s most powerful and prestigious appeals court and insisted they would not back down, inflaming a bitter debate over a president’s right to shape the judiciary.
By a vote of 53 to 38, the Senate failed to break a filibuster of a federal judge, Robert L. Wilkins, who was nominated to fill one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, falling short of the 60 votes needed.
Wilkins technically finished with 53 votes, but he had 54 supporters – Senate Majority Leader Harry Reid had to vote “no” for procedural reasons.
As was the case with last week’s filibuster, it’s important to recognize that the Republican obstructionism had nothing to do with Wilkins, his ideology, his temperament, or his background. On the contrary, just the opposite is true – senators in both parties agreed that Wilkins is a fine nominee.
The problem, rather, is that a minority of the Senate has decided to block every nominee for the D.C. Circuit, regardless of his or her qualifications, because Americans had the audacity to re-elect a Democratic president. Once there’s a Republican in the White House, Republican senators will presumably agree to lift the blockade.
This is important because it has simply never happened before in American history. Senators in both parties have, in a variety of instances, blocked judicial nominees they considered offensive or extreme for one reason or another, but there is nothing in the American tradition that says a minority of the Senate can maintain vacancies on an important federal bench – indefinitely – because they feel like it.
Indeed, perhaps the single most bizarre example of obstructionism run amok is Sen. John McCain (R-Ariz.), who said just a few months ago that each of Obama’s D.C. Circuit nominees deserve a vote in the Senate. McCain then proceeded to join the filibuster of the nominees he said shouldn’t be filibustered.
After yesterday’s obstructionism, Senate Democratic leaders began “taking the temperature of their caucus on whether to finally go ‘nuclear’ and change the Senate rules,” and by any fair measure, Republicans haven’t left the majority party with much of a choice.
Let’s make this plain: if Senate Democrats don’t force a confrontation over this, they will, for the first time in the institution’s history, have allowed a minority of the Senate to hijack the judicial nominating process without cause.
The status quo is, for lack of a better phrase, a simmering constitutional crisis of sorts. Either Democrats act or a precedent will be set.
What’s unclear is whether Dems will, or even can, proceed with the so-called “nuclear option.” Does the party have the votes to execute the plan? Do they have the intestinal fortitude to accept the blowback from Senate Republicans relying on obstructionist tactics that have never before been tried in the United States?
Last week, Sen. Pat Leahy (D-Vt.), the Senate Pro Tem and chairman of the Judiciary Committee, said, “I think we’re at a point where there will have to be a rules change.” Senate Majority Whip Dick Durbin (D-Ill.) added soon after, “I’ve said it before and I’ll say it again. There comes a tipping point, and I’m afraid we’ve reached that tipping point.”
If they were waiting to see what happened with Wilkins, now they know. Yesterday, Sen. Jeff Merkley (D-Ore.), a leading proponent of Senate reforms, asked, “When will we say enough is enough?”
In the short term, it’s up to Democrats themselves to answer this question. Republicans, whose support is not needed for the nuclear option, have effectively dared the majority party to end the blockade and return the Senate to its earlier traditions. In fact, Sen. Chuck Grassley (R-Iowa), whose antics have been more offensive than most in this debate, dared Democrats just a week ago to restore the original Senate process for judicial nominees.
Senate Republicans, for all intents and purposes, have broken the judicial confirmation process. They know they’re engaged in tactics with no precedent in the American tradition; they know it’s obstructionism on an unsustainable scale; they know it’s wholly at odds with every commitment they made during the Bush/Cheney era; and they just don’t give a darn.
Whether the Democratic majority is prepared to simply tolerate this crisis and allow the process to be hijacked for the indefinite future is unclear.
* Postscript: If you listened to the debate at all, you may have noticed GOP senators justifying their blockade by saying the D.C. Circuit handles fewer cases than the other circuits, and therefore can better tolerate indefinite vacancies. In case anyone was wondering whether the argument has merit, it doesn’t – this nonsense was debunked in September.