June 4, 2013
President Obama announces the nominations of Robert L. Wilkins, left, Cornelia T.L. Pillard, second from left, and Patricia A. Millet, right. (Evan Vucci/Associated Press)
President Obama announces the nominations of Robert L. Wilkins, left, Cornelia T.L. Pillard, second from left, and Patricia A. Millet, right. (Evan Vucci/Associated Press)

Three fresh nominees for the U.S. Court of Appeals for the District of Columbia Circuit: Patricia A. Millett, Cornelia T.L. Pillard, and current federal district judge Robert L. Wilkins.

Several points, notes-style:

• There is nothing special — at all — about a president making nominations for judicial vacancies. It isn’t a “challenge” to Republicans, no matter what spin either the White House or Senate Republicans put on it. The only thing notable about the timing of these nominations is how long it has taken Obama to make them.

• Indeed: This is only a small dent in the more than fifty seats on the bench still without nominees. Not all of that is Obama’s fault — a lot of it is foot-dragging by mostly Republican senators combined with the Senate’s commitment to “blue slip” procedures.

• Actually blockading these seats — a commitment by Republicans to defeat by filibuster anyone Obama nominated to any of the three open spots — would be unprecedented. And unjustified. And unsustainable; Harry Reid and the Democrats would surely go nuclear if that’s what Republicans choose to do.

• Stephen Stromberg has a nice post up arguing against obstruction, and I agree with him about that. However, I disagree a bit about the “political” nature of these picks. Stromberg advises against believing that “a vote for or against Obama’s nominees is a vote for or against the Obama agenda.” It’s true that one cannot always predict how judges will actually behave on the court, especially in particular cases, but it’s also true that there are strong tendencies at work which make it thoroughly predictable that a court filled with Obama nominees will be far more likely to support administration positions on carbon, on Wall Street regulation and on many other issues than one filled with judges selected by George W. Bush.

• Therefore, in my view, it’s perfectly reasonable for opposition party senators to push for relatively moderate judicial selections — that is, to oppose some nominees on purely ideological grounds if they believe the nominees are outside of the “mainstream.” And, no, there’s no objective test to that … it shouldn’t be an excuse to oppose every nominee a president proposes, but to oppose some is part of normal checks and balances.

• I even support the ability of minority party senators to use the filibuster against “extraordinary circumstances” judicial nominees. These are lifetime appointments, and I think intense minority opposition should count for something.

• That said: The bottom line here is that Obama won the 2012 election, and Democrats won a solid Senate majority in that election. Intense minority opposition occasionally winning is reasonable in a democracy; a minority winning most or all of the time cannot be justified.