As ThinkProgress has previously explained, the United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Time, however, is a harsh mistress, and several of the court’s older Republican appointees have taken partial retirement in the last several years. As a result, this court that once boasted one of the most lopsided lineups in the country now is split 4-3 between Democratic and Republican appointees. Moreover, the Senate Judiciary Committee held a hearing Wednesday on the nomination of Sri Srinivasan to the DC Circuit, a nominee brimming with conservative endorsers and past jobs working for Republican judges and administrations. If Srinivasan is confirmed, Republican-appointees will no longer have a majority among the active judges on the nation’s second-highest court. If another Obama nominee is confirmed to one of the three remaining vacancies, Republican-appointees will be in the minority.

Which explains why Sen. Chuck Grassley (R-IA) used Srinivasan’s hearing to introduce legislation ensuring that this won’t happen:

I would like to spend a couple minutes discussing the D.C. Circuit. As most of my colleagues know, the D.C. Circuit is the least busy circuit in the country. In fact, it ranks last or almost last in nearly every category that measures workload.

Based on the 2012 statistics from the Administrative Office of the U.S. Courts, the D.C. Circuit has the fewest number of appeals filed per authorized judgeship, with 108. By way of comparison, the 11th Circuit ranks first with over 5 times as many appeals filed per authorized judgeship, with 583. . . . Given this imbalance in workload, today I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

While it is true that the DC Circuit’s caseload is relatively small in terms of raw numbers, Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges). The DC Circuit, by contrast, hears far fewer of these easy cases that require very little work on the part of judges.

Indeed, it’s likely that even Chuck Grassley understands that Chuck Grassley’s numbers are misleading. In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventh active judge on the DC Circuit at the time of his confirmation.

Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible. If Grassley tries to use this excuse in the future to block an Obama nominee to the DC Circuit, Senate Democrats can respond by nuking the filibuster and making Grassley’s transparently self-serving views irrelevant.

Senate Minority Leader Mitch McConnell (R-KY) does not much like it when the Senate is getting things done. Indeed, the frequency of filibusters more than doubled after McConnell became his party’s leader in the Senate. But, as Bloomberg reports, the Minority Leader has now outdone his own ability to come up with reasons for the Senate to avoid doing its job:

The Senate was supposed to vote this afternoon on the nomination of Patty Shwartz as a judge on the 3rd U.S. Circuit Court of Appeals. That vote has been postponed until tomorrow because Minority Leader Mitch McConnell has other plans: Kentucky’s senior senator will be in the sea of red at the Georgia Dome in Atlanta as his University of Louisville Cardinals take on the University of Michigan Wolverines for the men’s NCAA basketball championship. . . .

Why the schedule foul-up? On March 31, Louisville knocked off Duke University to qualify for the Final Four, setting up a potential conflict for McConnell between the Senate vote and the championship game. He has been a frequent face in the crowd at the team’s NCAA tournament games this year.

A senior Democratic aide said the schedule was adjusted in the expectation that if Louisville made it to the final round, McConnell would want to go to the game. McConnell spokesman Don Stewart pointed out that the schedule change was made before Louisville won its Final Four game against Wichita State University on Saturday and the finals match-up was known.

For the record, it takes 51 votes to confirm a judge, and only 60 to break the filibusters that are now ubiquitous under McConnell’s leadership — and the Senate contains 99 other senators who don’t think that attending a basketball game is more important than their day job. Even excusing McConnell’s decision to place his personal needs ahead of the country, there is no good reason why the Senate cannot simply confirm Shwartz in McConnell’s absence.

In an interview with a public radio station in Nevada Friday, Senate Majority Leader Harry Reid (D-NV) indicated that the weak-tea filibuster reforms Senate Republicans agreed to last January may not be the last round of reforms during the current Congress — at least if Senate Republicans continue to filibuster judges without good reason or consequence. During the interview, Reid threatened to invoke a process championed by Senate Republicans in 2005 in order to change the Senate’s broken rules and end conservative roadblocks against judicial confirmations:

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary,” Reid said on Nevada Public Radio.

Reid last year adopted the position that rules could be changed using a simple majority — instead of a filibuster-proof majority — if done on the first day of the legislative session. But these recent comments appear to signal that he believes he has an even broader ability to reshape the chamber’s rules. . . . “I’m a very patient man. Last Congress and this Congress, we had the opportunity to make some big changes. We made changes, but the time will tell whether they’re big enough. I’m going to wait and build a case,” Reid said. “If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action.”

It is certainly good news that Reid appears willing to push more serious filibuster reforms through the Senate, but the ultimate test is whether he and 50 of his Senate colleagues have the resolve to actually pull the trigger on rules changes if Senate Republicans continue to erect barriers to judicial confirmation.

The last time this drama played out, with Democrats and Republicans each playing the opposite role, President Bush nominated several unusually ideological judges to federal appeals courts. These included Priscillia Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote an opinion reducing Enron’s taxes by $15 million. And Janice Rogers Brown, who compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution” before joining the federal bench, and who wrote an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect last year.

Nevertheless, few people doubted in 2005 that Senate Republicans were prepared to nuke the filibuster in order to confirm Bush’s slate of nominees, and seven Democratic senators eventually capitulated almost entirely to Republican demands and allowed both Owen and Brown to be confirmed in order to preserve the filibuster. In light of the Senate GOP’s effective use of that filibuster to block much of President Obama’s agenda and nominees, this capitulation now looks even more ill-considered in hindsight than it did at the time it occurred.

President Obama has never nominated anyone as far to the left as Judge Brown is to the right — indeed, it is not clear that anyone other than an avowed communist would fit that bill. Nevertheless, there is a lesson in the 2005 fight that made Brown a federal judge that Reid should take to heart: the best chance of convincing enough Senate Republicans to break with their party and stop filibustering Obama’s judicial nominees is for Reid to first convince them that he will pull the trigger on major rules reform unless they stop hindering the confirmation process.

And if Senate Republicans try to call Reid’s bluff by filibustering another nominee, Reid must show that he wasn’t bluffing.

After the Senate Republican minority blocked allowing an up-or-down vote on a completely qualified judicial nominee Wednesday, Senate Assistant Majority Leader Dick Durbin (D-IL) suggested it may be time to re-open the conversation on filibuster reform. A proposal to doing so — dubbed the “constitutional option” by then-Senate Majority Leader Bill Frist (R-TN) — was suggested by Senate Republicans as recently as 2005.

Durbin said in a floor speech:

We have tried at the beginning of this Senate session to avoid this kind of filibuster confrontation. The last several years we have had over 400 filibusters — a record number of filibusters in the Senate. I hate to suggest this, but if this is an indication of where we’re headed, we need to revisit the rules again. We need to go back to it again. I’m sorry to say it because I — was hopeful that a bipartisan approach to dealing with these issues would work. It’s the best thing for this chamber, for the people serving here and the history of this institution. But if this Caitlin Halligan nomination is an indication of things to come, we’ve got to revisit the rules.

In 2005, Senate Republicans slammed what they called the “unconstitutional” filibuster of President Bush’s nominees. They proposed a mid-session rules change to eliminate the power of the minority to block nominees with majority support. This “constitutional option” was only dropped when a bipartisan group agreed to only filibuster nominees in the most extreme circumstances.

Earlier this year, several Democratic Senators proposed significant changes to the Senate rules permitting minority obstruction of legislation and confirmation votes. Rather than pushing major changes, Majority Leader Harry Reid (D-NV) reached an agreement with Minority Leader Mitch McConnell (R-KY) for a very modest set of reforms.

Already this year, Senate Republicans have filibustered a bill to limit the harms of the sequester, the confirmation of a former Republican colleague to be Secretary of Defense, and — as of Wednesday — the confirmation of John Brennan to be CIA director.

Wednesday marked the second time, Senate Republicans have blocked a confirmation vote for Caitlin Halligan, an Obama nominee for the U.S. Court of Appeals for the District of Columbia Circuit, dating back to 2011. As 41 Senate Republicans voted to filibuster her, only Sen. Lisa Murkowski (R-AK) voted to give her an up-or-down vote.

The Senate just voted 51-41 to end the Senate Republicans’ filibuster of Caitlin Halligan to the second highest court in the country, the United States Court of Appeals for the DC Circuit — which in the bizarro world that is the Senate means that Halligan’s nomination will not move forward. Majority Leader Harry Reid (D-NV) switched his vote to “no” for procedural reasons, but he supports the nomination.

There are many reasons why Halligan should be a judge. She is among the best attorneys in the country. The court she was nominated to now has four vacancies, and thus will experience an increasingly crushing workload without new judges. Additionally, the DC Circuit’s current conservative majority includes some of the worst judges in the country. Two DC Circuit judges recently joined an opinion claiming that all business, labor or Wall Street regulation is constitutional suspect. Halligan’s confirmation would have diluted those judges’ votes, which is an important goal in and of itself.

There is, however, also a very bad reason to keep Halligan off the bench. As Sen. Chuck Grassley (R-IA), the highest ranking minority member of the Senate Judiciary Committee, recently claimed, Halligan’s “got gun problems.”

Of course, her so-called “gun problem” is that she once argued a position that the NRA disagrees with when she was Solicitor General of the state of New York. And the idea that she should be blocked for the positions she argued as a government attorney is completely absurd. By that logic, Republicans should also block Republican superlawyer Paul Clement because he is too friendly to Obamacare.

But the NRA is not a logical organization — their CEO recently claimed that we all need to arm ourselves to defend against violent Latinos and the collapse of civilization. So it’s not surprising that they would take an unreasonable position on Halligan. Nevertheless, it is deeply unfortunate that 40 senators are still following the lead of this fringe organization.

Yesterday, the Senate confirmed Judge Pamela Ki Mai Chen to a federal court in New York, meaning that there are now a whopping five openly gay judges on the federal bench. Four of these five are Obama appointees, and the fifth, Clinton appointee Deborah Batts, recently took a kind of partial retirement for older judges. As a result, of the nearly 800 men and women who currently serve as active Article III judges in the United States courts, just 4 are openly gay, and none of these serve on courts of appeal or on the Supreme Court.

LGBT representation in Congress is slightly, but only slightly, better. Currently, just over 1 percent of House seats are filled by openly gay lawmakers, and Sen. Tammy Baldwin (D-WI) is the first openly gay senator in American history. She’s now been a senator for just over two months.

All of this is a long way of saying that a brief House Republicans recently filed in the Supreme Court claiming that the anti-gay Defense of Marriage Act should not be struck down on constitutional grounds because “gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics” is comically ridiculous. LGBT Americans have indeed made significant strides in recent years, and President Obama deserves praise for doing more to diversify the judiciary than any other president in history, but five openly gay judges and a senator is a far cry from being one of the “most influential” group in the nation.

A Washington Post profile of President Obama’s efforts to diversify the federal bench provides an interesting window into the depth of his commitment to this project. Of the 35 judicial nominees currently pending before the Senate, “17 of the 35 pending judicial nominees are women, 15 are ethnic minorities and five are openly gay.” Only six are white straight men.

To be sure, this particular slice of the President’s judicial nominees is unusually diverse, but Obama has still shown a great commitment to judicial diversity than any of his predecessors. “During Obama’s first term, 37 percent of his confirmed judges were nonwhites, compared with 19 percent for President George W. Bush and 27 percent for President Bill Clinton. The trend is similar on gender: 42 percent of Obama’s first-term judges were women, compared with 21 percent for Bush and 30 percent for Clinton.” As ThinkProgress previously reported, Obama has quadrupled the number of openly gay judges with lifetime appointments to the federal bench (although this has as much to do with the fact that there was only one openly gay Article III judge before Obama took office as it does with the President’s nominees).

It should be noted that, while the President’s devotion to judicial diversity is admirable, his record on judicial confirmations would be stronger if he were quicker to nominate judges — the majority of vacancies currently do not have a nominee. Likewise, because the biggest obstacle to swift judicial confirmations remains widespread filibusters by Senate Republicans, Senate Democrats will ultimately need to push through a more aggressive filibuster reform package than the fairly weak package enacted earlier this year or else many of the President’s nominees are likely to languish behind a curtain of obstructionism.

As soon as next week, the Senate is expected to consider Caitlin Halligan’s nomination to the United States Court of Appeals for the D.C. Circuit. Halligan is a former Supreme Court clerk, a former Solicitor General of the state of New York, and is currently general counsel for one of the largest prosecutor’s offices in the country. She received the highest possible rating from the American Bar Association. And she was enthusiastically endorsed by a bipartisan group of some of the top Supreme Court advocates in the country.

Her nomination was also filibustered more than a year ago by Senate Republicans after the National Rifle Association sent them a letter complaining that she argued a position in court that the NRA disagrees with.

A lot has happened since then, however. The NRA spent the months after the Sandy Hook massacre engaged in what appears to be a very skillfully crafted campaign to eradicate its own credibility. The NRA went silent for a week after this tragedy occurred, only to send their CEO Wayne LaPierre forth from his bunker to claim that “the only thing that stops a bad guy with a gun is a good guy with a gun.” More recently, LaPierre published an op-ed warning that a breakdown of civilization is coming, but you may not be around to see it because Latino gangs are also out to get you, and so is al-Qaeda, and the only way to save yourself is to buy a gun. The NRA’s opposition to universal background checks is less popular than communism, polygamy or human cloning. There are literally more Americans that believe they have personally seen a UFO than agree with the NRA’s stance on background checks.

And yet the highest ranking minority member of the Senate Judiciary Committee still believes he should follow the NRA’s lead on judges. Earlier this week, Sen. Chuck Grassley (R-IA) announced he would rekindle the filibuster against Halligan when she comes to the Senate floor because “she’s got gun problems.” Grassley previously cited the NRA’s opposition to Halligan in a statement explaining why he was filibustering her.

In case there is any doubt, the NRA’s case against Halligan is exceptionally weak. As Solicitor General of New York, Halligan’s job was to advocate on behalf of the state’s legal positions whether she agreed with them or not. New York took a position that departs from the NRA’s maximalist views on guns, and Halligan did her job by arguing her client’s position in court.

Simply put, a government attorney’s arguments on behalf of the government they represent says virtually nothing about how they actually view a particular legal issue. President George W. Bush’s first Solicitor General, Ted Olson, successfully defended campaign finance reform while he was in the Justice Department, only to convince five justices to destroy most of our campaign finance regime when he argued Citizens United. Bush’s second Solicitor General, Paul Clement, argued and won one of the strongest cases establishing that the Affordable Care Act is unconstitutional when he was in the government, and then spent more than a year undermining his victory once he was hired to claim that health reform is unconstitutional. So attacking Halligan for her gun arguments is a bit like attacking conservative movement’s top lawyer for being too friendly to Obamacare.

Ultimately, however, it shouldn’t be surprising that the NRA’s case against Halligan doesn’t hold water — this is, after all, an organization that believes we must arm ourselves to defend against scary Latinos and the collapse of civil society. Nevertheless, it is unfortunate that Grassley appears willing to give a group that holds these views a veto power over judges.

Nation Rifle Association CEO Wayne LaPierre’s recent op-ed, which argues that guns are necessary because civilization is on the verge of collapse and also we’re all in danger of being killed by terrorists and violent Latinos, has been widely mocked. Yet, buried in LaPierre’s fantasies about a Mad Max landscape where the only thing standing between a man and certain death at the hands of swarthy gang members is his trusty assault rifle, is a fairly detailed road map explaining how the NRA will protect future residents of this dystopia from the scourge of universal background checks.

Item #1 on his list — file a blizzard of lawsuits while the judiciary is still controlled by the kind of judges who think there’s absolutely no difference between a corporation and a human being:

[W]e are going to devise legal capability like never before. I fervently hope that President Obama does not get to appoint another anti-gun Supreme Court justice like Sonia Sotomayor or Elena Kagan. But he probably will, and we must meet that challenge. His chances of appointing a replacement for one of the five pro-rights justices in the 5-4 Heller and McDonald majorities are high. And there’s no doubt he is going to appoint a huge number of new judges to lifetime positions in the lower federal courts.

That means the federal courts are going to get worse and worse. So some cases, on which we might have improved our chances of victory by waiting a while, are going to have to be brought now.

It should be noted that the NRA isn’t just trying to lock in victories with the judge’s they have, they’ve also demanded a veto power over new judges — and Republicans appear all too eager to give it to them. In 2011, Senate Republicans voted almost unanimously to filibuster a nominee to the United States Court of Appeals for the District of Columbia Circuit named Caitlan Halligan. Although the GOP’s case against Halligan was thin, their top argument against her was that she is unfit for the bench because she argued a position the NRA disagrees with when she was Solicitor General of New York.