April 2, 2013

Barack Obama has gone longer without putting anyone on the critical D.C. Circuit appeals court than any president before him. That record — and the extent of Republican obstruction — will be put to the test next week, now that the Senate Judiciary Committee has finally scheduled a hearing for Sri Srinivasan, Obama’s second nominee for the four vacancies on that panel.

As Adam Serwer reports, there’s plenty of bipartisan outside support for Srinivasan within the legal community. Nevertheless, he’ll be subjected to a filibuster (as all nominees have been since January 2009), and it’s not clear yet what Republicans will do. Specifically, it’s not clear that the five Republicans needed to defeat the filibuster will agree to support cloture.

The key here is that, soon after their successful filibuster of D.C. Circuit nominee Caitlin Halligan, we’ll get a good test of whether Republicans are simply attempting an across-the-board blockage of any candidate for what’s usually considered the nation’s second-highest court.

That’s important, because it will dictate Democratic strategy going forward — or at least it should. If 41 or more Republicans simply will not vote for anyone to the left of John Roberts, the only option left to Democrats will be Senate rules reform. On the other hand, if Srinivasan can be confirmed, Republican claims that they have objected only to specific nominees for specific reasons can be taken more seriously. Moreover, Republicans could argue with at least some justification that the process is working properly: The minority party can effectively veto the occasional nominee it strongly objects to, but the majority normally gets their way.

Now, some will argue that the majority should always win, but senators from both parties tend to disagree. When the majority rarely if ever wins, however, that majority is eventually going to use its numbers to impose reform, even if it’s not their ideal reform.

No single nomination can be the ultimate test, but for Democratic senators, this one will be — and probably should be — pretty big. If Republicans are out to nullify the 2012 elections (both presidential and in the Senate) with regard to the D.C. Circuit Court, Democrats will have to strongly consider fighting back with Senate reform.