Federal Courts and Nominations

Why The Filibuster Change Is Fantastic News For Obama

By Sahil Kapur


The Senate historic “nuclear option” vote Thursday to end the filibuster for executive nominees and most judicial nominees is excellent news for President Barack Obama.


Obama’s second-term agenda largely runs through the powerful D.C. Circuit Court of Appeals, which often has the final word on matters of White House and executive branch authority. That’s the strongest tool Obama has to still get things done, because as long as Republicans control the House, his legislative agenda isn’t going anywhere. The Senate rules change clears a path for the president to confirm his three stalled nominees to vacancies on the conservative-leaning court, and make it less hostile to his executive actions.


“There will be more judges on the court now who will follow the Constitution and laws as written, rather than reach ideologically-driven results,” said Judith Schaeffer, the vice president of the Constitutional Accountability Center, a liberal legal advocacy group. “The President’s executive actions and his legislative accomplishments will be in good hands with judges who follow the law.”


The D.C. Circuit has been the GOP’s most potent weapon against Obama’s use of executive power, as it has overturned a slew of his regulations on health care, environmental protection, labor and recess appointments. Most recently, a three-judge panel on the court struck down Obamacare’s contraception mandate.


The appeals court will continue to be a flashpoint in the ongoing war of Obamacare as the White House strives to tweak and improve the law via executive fiat. The court may have a say on president’s efforts to curb climate change by regulating carbon emissions as a pollutant, a major initiative that he wants to make part of his presidential legacy. It may also continue to serve as a check on his efforts to advance labor priorities.


Progressive legal advocates, frustrated by what they see as a series of activist conservative rulings by the D.C. Circuit, are excited about the impacts of the Senate rules change.


“We think today’s rule change bodes well for the D.C. Circuit,” said Caroline Fredrickson, president of the liberal American Constitution Society. The three new nominees, she said, “will also bring balance to the court. There is a partisan imbalance on the court. … The appointing president isn’t everything, and the judiciary should be above partisanship or bias, but the fact is that the D.C. Circuit has demonstrated a strong rightward tilt in recent years.”


Once Obama nominees Patricia Millett, Nina Pillard and Robert Wilkins become judges, the D.C Circuit’s active bench will have a 7-4 split of Democratic appointees. Republicans have filibustered all three of them because, as they openly admit, they don’t want to tilt the ideological balance of the court. In some ways it’ll remain a conservative court even after they’re confirmed: the division among “senior” judges, who routinely rule on cases, remains 5-1 in the GOP’s favor. But the court will suddenly be less likely to rebuke Obama.


“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents,” Sen. Chuck Grassley, the top Republican on the Judiciary Committee, said recently. “There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.”


The D.C. Circuit is also a feeder to the Supreme Court — four sitting justices were plucked from that court. The one D.C. Circuit nominee Obama has confirmed thus far, Sri Srinivasan, is already rumored to be a future Supreme Court contender. Pillard’s pioneering work on women’s issues has drawn comparisons to Justice Ruth Bader Ginsburg, the leader of the liberal wing.


Beyond the D.C. Circuit, the new rules give the 55-member Democratic Senate majority an opportunity to confirm a slew of judges to an unusually large number of vacancies on circuit courts and district courts. Some of this is Obama’s own fault for his notoriously slow decision-making on judicial nominees. But Republicans have forced unprecedented delays and stalling before confirming his nominees, even though — as they often point out — they have ultimately rejected very few of them. A friendly Senate majority may even encourage him to nominate more liberal candidates for the judiciary.


Fredrickson cautions that it may not all be smooth sailing because Senate rules still allow home-state senators to stall or nix a judicial nomination by withholding a “blue slip” or by refusing to put forth names of district court candidates for the president to consider.


The new rules eliminate the 60-vote threshold for not just judges (excluding the Supreme Court) but also executive appointments to cabinet and sub-cabinet agencies. That means Obama doesn’t need a single Republican vote to confirm them. Jeh Johnson, his pick to replace Janet Napolitano to lead the Department of Homeland Security, is now on a glide path to confirmation. Republicans who oppose Janet Yellen for Fed chair may be ignored.


More broadly, it means that if Obama wants to replace someone in his administration, he can do so without having to worry about the sort of painful, protracted confirmation battle that Republicans are often inclined to wage.


“I’m hopeful that the atmosphere will become less toxic,” said Fredrickson. “It’s early yet, and I’ve been in Washington too long to be completely rosy, but I think the prospect of up-or-down votes on each nominee could reduce the grandstanding, the hyperbole, and the attempts to smear people. That would be a good thing.”


Unsurprisingly, Obama was pleased with the Senate filibuster change.


“The vote today I think is an indication that a majority of senators believe, as I believe, that enough is enough,” he said Thursday at the White House. “The American people’s business is far too important to keep falling prey, day after day, to Washington politics. … Public service is not a game. It is a privilege. And the consequences of action or inaction are very real.”

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