Federal Courts and Nominations

The Next Nuclear Test

Bipartisanship broke out in Washington last week. Thanks to a bit of statesmanship by Senators including John McCain (R-AZ), the Senate confirmed several of President’s Obama’s longest- waiting Executive Branch nominees and thereby made it unnecessary for Majority Leader Harry Reid (D-NV) to carry out a change to Senate rules to prevent filibusters over these nominees. Senator Reid’s plan to change the Senate filibuster rules by a simple majority vote (rather than the two-thirds majority typically required for rules changes) has been threatened by both parties, but never executed. The plan has been dubbed the “nuclear option” out of fear that its deployment would throw the already dysfunctional Senate into hopeless disrepair.

While the actions last week represented an important step forward, the nuclear threat still looms as the Senate turns to President Obama’s three nominees to the all-important United States Court of Appeals for the D.C. Circuit. If Senate Republicans follow through on threats to prevent confirmation of any of these nominees under the fig leaf of an argument about whether this court needs more judges, we could quickly be back to the nuclear brink.

The parallels between the fight over Executive Branch nominees such as Richard Cordray, nominated two years ago to head the Consumer Financial Protection Bureau (CFPB), and the upcoming fights over the D.C. Circuit, are striking. Cordray is a brilliant administrator and thinker who just about everyone agreed was a perfect choice to head the CFPB. Very few Republicans challenged Cordray’s credentials or suitability for the job. Rather, they held up his nomination in an effort to obtain amendments to the 2010 Dodd Frank Wall Street Reform and Consumer Protection Act that would have changed the way the Bureau was set up. Democrats rightly viewed this as a form of blackmail and refused to budge on Cordray’s confirmation.

Similarly, the fight over the D.C. Circuit is not really over President Obama’s three extraordinarily qualified nominees — noted appellate advocate Patricia Millett, Georgetown Law Professor Nina Pillard, and District Judge Robert Wilkins – but rather over whether the three congressionally-authorized judicial seats to which they have been nominated should be filled in the first place. Senator Charles Grassley (R-IA) has introduced legislation that would eliminate those three seats. Even though Senator Grassley pushed for confirmation of President George W. Bush’s nominees to the same court, at a time when its caseload per authorized judge was actually lower, he now insists that President Obama’s nominees are not needed. At Millett’s hearing earlier this month, Senator Ted Cruz put it most starkly. After praising Millett effusively, Cruz made it clear that the issue was not her qualifications but instead a desire by Republicans to keep President Obama from filling vacancies on the D.C. Circuit and altering what is now a 9-5 ideological advantage in their favor on that court, when you count both active and senior judges. Yesterday, during Pillard’s hearing, Republicans did raise some ideological concerns, but once again much of their remarks focused on whether or not there should be more judges on the D.C. Circuit at all.

There are also parallels between the resolution of the nuclear threat last week and the path forward on the D.C. Circuit. With Majority Leader Reid and Minority Leader Mitch McConnell (R-KY) at loggerheads, it took a handful of other Senators, notably including Senator McCain and Senator Susan Collins (R-ME), to step into the void and hammer out a deal that allowed Cordray to be confirmed, ultimately by a comfortable 66 to 34 vote. Senator McCain has already stated that because “elections have consequences,” President Obama’s nominees to the D.C. Circuit deserve an up-or-down vote. Similarly, Senator Collins, while co-sponsoring Grassley’s bill to eliminate seats on that court, has said that she will consider the nominees on the merits. Clearly there is already unease in the Republican caucus about going down the Cordray road with President Obama’s nominees to the D.C. Circuit. The first real test of a commitment to putting business before obstruction comes next week, just before the August recess, when the Senate Judiciary Committee will likely hold its vote on Patricia Millett. One important signal may be the votes of Senators Lindsey Graham (R-SC) and Jeff Flake (R-AZ), who joined Senator McCain in ensuring that Cordray and other Executive Branch nominees got an up-or-down vote last week.

The Senate has shown that, occasionally and when pressed, it can live up to its faded reputation as the “world’s greatest deliberative body.” Whether this proves to be an exception or an important new way of conducting business will be decided soon with the coming battle over the President’s nominees to the D.C. Circuit.

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