Every single Republican in the Senate Judiciary Committee voted Thursday morning to block the first of three nominees to the United States Court of Appeals for the D.C. Circuit. If they succeed in blocking these nominees, they will maintain Republican control of the second most powerful court in the country — a court that has been eager to block policies Republicans disagree with through creative interpretations of the law. Similarly, today’s vote is the surest sign for Senate Democrats that a deal earlier this month that delayed the so-called “nuclear option” — a procedure to change the Senate’s rules with a majority vote — only put off the inevitable. If Democrats do not want a Republican court to continue to veto labor, environmental and business regulation, today’s vote is a good sign that they will need to nuke.
The nominee at the center of today’s vote — Supreme Court litigator Patricia Millett — is easily the least offensive of the three D.C. Circuit nominees from a Republican perspective. Unlike fellow nominee Nina Pillard, a leading feminist scholar who argued and won major women’s rights victories before the Supreme Court, Millett earned over a million dollars last year as a partner in an elite law firm that primarily represents wealthy corporate clients, and she’s defended the Roberts Court against allegations that the Court has a pro-corporate bias. (In fairness to Millett, she did so several years ago before the evidence of such bias became much harder to rebut). Indeed, Sen. Orrin Hatch (R-UT) admitted that he has “no objection to [Millett] personally,” he just doesn’t want the three seats on the D.C. Circuit to be filled.
To sell their opposition to filling these seats, Senate Republicans claim that the court’s current workload only justifies filling 8 active judgeships, not the 11 seats authorized by law. This claim, however, relies on misleading statistics which ignore the the fact that the D.C. Circuit hears many of the most time-consuming and complex cases heard anywhere in the judiciary. Revealingly, Senate Republicans also had no problem confirming a ninth, tenth and even an eleventh judge to the DC Circuit when George W. Bush was naming the judges.
One potentially significant aspect of today’s committee vote on Millett was Sen. Lindsay Graham’s (R-SC) vote in opposition. Graham has, at times, crossed over to confirm judicial nominees opposed by most of his caucus, and he was one of the six key Republican senators who voted to break a Republican filibuster of ATF Director B. Todd Jones on Wednesday. So his vote is indicative of how the bloc of Republicans willing to ward of obstructionism view the Millett nomination and the D.C. Circuit as a whole.
Nevertheless, two questions remain regarding whether a nuclear showdown is inevitable. One is whether Graham, Sen. John McCain (R-AZ) and other senators who caved to Democrats — at least after Senate Majority Leader Harry Reid (D-NV) threaten nuclear action earlier this month — will again decide that they care about warding off the nuclear option so much that they will ultimately strike another deal to confirm the D.C. Circuit nominees.
The second question, and the most important one, is whether Democrats will hold together if the D.C. Circuit confirmations do descend into another nuclear war. The outcome of the latest showdown, where Reid made his demands and received virtually everything he asked for, was somewhat surprising because Democrats have a long history of capitulation in battles over the filibuster.
Moreover, there are a small number of Senate Democrats who are more reluctant to invoke the nuclear option to confirm judges — as opposed to executive branch nominees — because of fears that a Republican president will someday be able to do the same. It’s not at all clear how they can square this reluctance with history, however. In 2006, when the filibuster was very much alive, Republicans still managed to confirm Justice Samuel Alito to the Supreme Court — despite the fact that Alito may literally have been the most anti-abortion judge in the country at the time that he was confirmed. If Senate Democrats couldn’t wield the filibuster to block Alito, then it’s pretty clear that the filibuster is a useless tool in Democratic hands.