Last July, the fight over whether the party that controls neither the White House nor the Senate may nonetheless veto nominees to top government jobs reached a momentary ceasefire. On Thursday, Senate Republicans blew up that ceasefire by filibustering two of President Obama’s nominees, including his nomination of Patricia Millett to the second most powerful court in the country.
These Republicans may ultimately come to regret their decision to reignite the filibuster wars. To date, President Obama has been far more timid than his predecessor when it comes to judicial nominations. Indeed, Millett is a perfect demonstration of this timidity. Millett is one of the best lawyers in the country, but she is also a pro-business lawyer in a large corporate law firm with nothing in her record to suggest that she will be a liberal lion if confirmed.
Similarly, Senate Democrats have historically been reluctant to change the filibuster, though they’ve grown more and more willing to do so as the minority’s tactics escalated. Now, however, with the Senate Minority Whip openly admitting that he’s blocking the D.C. Circuit nominees in order to prevent more Democrats from joining the court, the Senate GOP’s latest tactic could very well prove a bridge too far for the Democratic majority.
If Democrats finally remove the filibuster, everything changes in the judicial nominations space. Here are five potential nominees to the Supreme Court that would enrage Republicans, and that would be virtually unconfirmable in a 60 vote Senate. But that could easily be confirmed to the nation’s highest Court if Senate Republicans push their Democratic colleagues to invoke the nuclear option:
1. Nina Pillard
Georgetown law Professor Nina Pillard, who is currently one of Obama’s three nominees to the D.C. Circuit, is a giant of the feminist bar. As an attorney, she argued and won one of the most important anti-gender stereotyping cases to reach the Supreme Court in decades. Similarly, her scholarship eloquently rejects the often-subtle ways that government actors maintain those stereotypes. One article, which has come under blistering attack by conservatives, argues against the constitutionality of public school curricula asserting 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,” while “[m]en’s happiness and success hinge on their accomplishments.”
She is, in other words, the perfect candidate to someday replace the most successful women’s rights attorney in American history — Justice Ruth Bader Ginsburg.
2. Pam Karlan
Stanford law Professor Pam Karlan is a leading expert on voting rights and a top advocate before the Supreme Court. Among other things, she recently represented Edith Windsor in the landmark case striking down the anti-gay Defense of Marriage Act. Plus, she’s in a long-term committed relationship with a woman, so she would add an LGBT perspective to the Supreme Court.
President Obama reportedly considered nominating Karlan to a federal judgeship, but he never followed through after his nomination of the liberal academic Goodwin Liu ran up against a GOP filibuster. If Senate Republicans force Harry Reid to kill the filibuster, there’s no good reason why Karlan should be kept off the bench.
3. Tom Perez
Secretary of Labor Tom Perez was barely confirmed to his current job, largely due to conservative objections to the steps he took to prevent federal housing discrimination and to protect voting rights while he served as the Justice Department’s top civil rights attorney. Indeed, it is likely that the only reason why Perez serves in President Obama’s cabinet today is that he was one of the seven nominees that was part of the last nuclear option standoff in July. If Democrats had not stood their ground and proved their willingness to change the filibuster rules, it’s difficult to imagine Republicans allowing Perez to be confirmed. Once the filibuster is gone, however, the GOP’s opinion will be irrelevant.
4. Dawn Johnsen
Indiana law Professor Dawn Johnsen was supposed to lead the Justice Department’s Office of Legal Counsel under President Obama, but she was filibustered due to her outspoken opposition to tactics such as torture, as well as her work earlier in her career defending abortion rights. She remains one of the most thoughtful civil libertarians in the progressive legal community, and would be an outstanding judge or justice in a world without a filibuster.
5. Debo Adegbile
Debo Adegbile is an expert on voting rights who served as a litigator for twelve years with the NAACP Legal Defense Fund, eventually rising to be it’s Acting President & Director-Counsel. Adegbile twice defended the Voting Rights Act before the Supreme Court, once successfully, the other time less so. He is the perfect candidate to author a Supreme Court opinion overruling the Roberts Court’s decision gutting this essential voting law, and to declare other voter suppression laws such as voter ID unconstitutional to boot.
In other words, Senate Republicans have a choice to make. They can either restore the détente that existed from July until yesterday afternoon, or they can continue to push their Democratic colleagues into a nuclear showdown. If they take the later path, they risk destroying a status quo that’s been very good for the GOP.
The filibuster proved almost completely useless when Republicans controlled the White House and the Senate. Yesterday’s opinion reinstating Texas’ anti-abortion laws was authored by a judge that Democrats tried — and failed — to filibuster. This morning, the D.C. Circuit handed down a decision saying religious employers can deny birth control coverage to their employees. The author of that opinion was also the subject of a failed Democratic filibuster. Justice Samuel Alito was one of the most anti-abortion judges in the country when he was successfully confirmed to the Supreme Court.
It is, of course, a massive oversimplification to reduce judicial politics to the narrow topic of reproductive freedom, but the fact remains that this issue — and abortion in particular — remains the most contentious and partisan matter facing the courts. And the filibuster was completely useless against Republicans seeking to place hardline conservatives on the bench.
So the GOP currently enjoys a world where their legal heroes can reach the highest pinnacles of the federal judiciary, while similarly-situated progressives languish behind filibusters or are never nominated at all. And now Republicans risk upending that world because they want even more.