Speaking after the vote on Tuesday, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said he believed it had come to the point when Senate filibuster rules must be changed because Republicans were holding the president's nominees to such "a blatant double standard." Slamming his fist on a lectern, he shouted, "Their credibility is shredded!"
As expected, Senate Democrats brought Cornelia Pillard's nomination to the D.C. Circuit to the floor late yesterday. As expected, Pillard, an obviously qualified nominee with excellent credentials, enjoyed majority support. And as expected, the Senate Republican minority refused to allow the Senate to vote on her nomination, not because the GOP found something wrong with her, but because Republicans intend to block all D.C. Circuit nominees until their party wins another presidential election.
The final tally was 56 to 41, though Senate Majority Leader Harry Reid had to vote "no" for procedural reasons (in other words, Pillard at 57 votes, not 56). Looking ahead, the next question is pretty straightforward: what does the Senate Democratic majority intend to do about a level of obstructionism never before seen in the United States?
Senate Republicans seem to believe the "nuclear option," which would eliminate filibusters on judicial nominees altogether, is unlikely. Those assumptions may well be mistaken.
Leahy, the Senate Pro Tem, added, "I think we're at a point where there will have to be a rules change."
Senate Majority Whip Dick Durbin (D-Ill.) said 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."
The trouble, of course, is that we've all heard this talk before. Senate Republicans came up with the "nuclear option" idea eight years ago, but backed off at the last minute, and ever since, senators in the majority have frequently walked right up to the line, only to step back for one reason or another.
Whether Senate Democrats are prepared to follow through this time is unclear, though it's worth noting that these circumstances really are unprecedented. There is simply nothing in the American tradition that shows a Senate minority declaring that literally every nominee to an appeal court bench must be blocked -- regardless of merit -- because the minority's party lost a presidential election. The very idea is plainly ludicrous.
Political scientist and centrist pundit Norm Ornstein told TPM that the GOP hasn't left Democrats with much of a choice. "In previous cases it was the minority party filibustering nominees they judged were not mainstream," Ornstein said. "There's no case even being made that these nominees aren't qualified. We've never seen that before. ... I just think it's ridiculous. Absolutely ridiculous."
In his print column, Ornstein added, "The argument that if he does so, Republicans will do the same thing when they take the White House and Senate is a bad one: Can anyone doubt that McConnell would blow up the filibuster rule in a nanosecond if he had the ability to fill all courts with radical conservatives like Janice Rogers Brown for decades to come?"
The status quo cannot stand. This isn't generally seen as front-page news, but what Republicans have created is a kind of constitutional crisis, which demands a resolution, one way or the other.