Last July, Senate Democrats backed off their plan to invoke the so-called “nuclear option” and abolish the filibuster on executive branch nominees — but only after their Republican counterparts caved and agreed to fill seven key government jobs they previously held open with filibusters. Since then, the two parties have maintained an uneasy détente in the confirmation wars. A small group of Republicans supplied the exact minimum number of votes required to break a filibuster on Secretary of Labor Tom Perez’s nomination, for example, even though many Republicans bitterly object to the steps Perez took to fight housing discrimination and to protect the right to vote.
That détente is likely to break down as soon as this week, however. A Senate Democratic leadership source confirms to ThinkProgress that Majority Leader Harry Reid (D-NV) plans to call for a vote on three nominees to the second most powerful court in the country, with the first vote likely to come this week. This court, the United States Court of Appeals for the District of Columbia Circuit, is currently a bastion of conservatism. Its conservative judges struck down crucial environmental regulations that would prevent literally tens of thousands of deaths. They issued an opinion that at one point threatened to shut down all of American labor law. And two of its judges even joined an opinion claiming that all business, workplace or Wall Street regulation is constitutionally suspect. For most of the Obama presidency, the D.C. Circuit’s been a place where progressive regulation goes to die — and Senate Republicans want to keep it that way.
These Republicans’ lead argument is that three vacancies on this powerful court should not be filled because the total number of cases heard by the D.C. Circuit is lower than that on several other federal appeals courts. This claim is literally true, but it’s also highly misleading. Unlike most federal courts of appeal, the D.C. Circuit hears an unusually large volume of major regulatory and national security cases — some of which require the judges and their law clerks to review administrative records that literally take up entire rooms. Moreover, it’s worth noting that the Senate GOP’s concerns about underworked D.C. Circuit judges is a recent invention. Currently, there are eight active judges serving on this court. During the Bush Administration, Senate Republicans voted to confirm a total of eleven active judges to the D.C. Circuit. So confirming President Obama’s nominees will only restore the court to the same number of active judges it employed at the height of the Bush Administration.
Indeed, in an unusual moment of candor, Senate Minority Whip John Cornyn (R-TX) gave away what is almost certainly the real reason he and his fellow partisans want to keep the court’s seats vacant. In an op-ed published by Fox News, Cornyn attacks a statement by Senator Reid indicating that Obama’s nominees would “switch the majority” on the D.C. Circuit so that the court would be controlled by Democratic nominees. Cornyn would prevent this outcome by refusing to fill the court’s vacancies.
Democratic sources tell ThinkProgress that Reid is likely to seek a vote first on Patricia Millett, a corporate litigator who is among the most prominent and widely respected members of the Supreme Court bar. Indeed, Obama’s decision to nominate Millett to this powerful court is practically an act of trolling. Though no one doubts that Millett is among the most skilled attorneys in the country, there’s little in her record suggesting that she will be a liberal voice on the D.C. Circuit. Far from it, Millett actually claimed that the conservative Roberts Court “show[ed] a fair amount of balance in the business area” during testimony before the Senate Judiciary Committee — although this was, admittedly, several years ago before the evidence of the Roberts Court’s pro-corporate bias became undeniable. By leading with Millett, Reid will force Senate Republicans to stand for obstruction for obstruction sake, rather than giving them the opportunity to point to something in the nominee’s record that they disagree with.
The nominee to watch, however, is Georgetown law Professor Nina Pillard. Conservative interest groups slammed Pillard for her “militant feminism,” in large party because she authored a law review article arguing that it is unconstitutional for public schools to teach children to conform to traditional gender rolls. Some of the curricula Pillard criticizes in her article — and that conservatives have implicitly defended with their attacks on Pillard — teach that women need “’financial support,’ whereas men need ‘domestic support’ and ‘admiration,’” or that “[w]omen gauge their happiness and judge their success on their relationships. Men’s happiness and success hinge on their accomplishments.”
Nor is Pillard’s advocacy for women’s rights limited to her scholarship. As a litigator, Pillard won one of the most important anti-gender stereotyping cases to reach the Supreme Court in the last few decades. Indeed, she is quite possibly the most significant feminist attorney to be nominated to the federal bench since Justice Ruth Bader Ginsburg, and if Republicans succeed in blocking her nomination, it will send a clear message to President Obama and future Democratic presidents that nominating outspoken advocates for women’s equality isn’t worth the effort. Among other things, President Obama has not been particularly aggressive in nominating openly pro-choice judges. If Pillard goes down, he’s unlikely to do so again.
Ultimately, however, the question of whether any of the President’s three nominees — Pillard, Millett or federal trial Judge Robert Wilkins — get confirmed is likely to rest upon whether Democrats are willing to rally behind the nuclear option in the same way they did last July. When Democrats showed that they had the votes to nuke the filibuster in July, Republicans caved, and Democrats had to offer nothing more than a fig leaf to fill seven top jobs. It is likely that Senate Republicans will cave again if Democrats show the same united front — and if they don’t, Democrats will eliminate the filibuster on judicial nominees, which is an even better outcome!
Nevertheless, there are a small number of Senate Democrats who have previously been reluctant to push the nuclear option, at least with respect to judicial nominees. The question of whether one of America’s most powerful courts will continue to thwart progressive regulation with impunity — much less whether America can ever have an openly pro-choice judge again — rests in their hands.