August 1, 2013
From left, Robert Wilkins, Cornelia Pillard, President Obama and Patricia Ann Millet. (Manuel Balce Ceneta/Associated Press)
From left, Robert Wilkins, Cornelia Pillard, President Obama and Patricia Millet. (Manuel Balce Ceneta/Associated Press)

The first of President Obama’s three current nominees for the D.C. Circuit Court won a victory in the Judiciary Committee today, but unified Republican opposition hints that they may be planning a blockade strategy after all. If so, we’re in for another nuclear showdown.

I don’t think Senate Majority Leader Harry Reid and the Democrats, or at least most of the Democrats, want to eliminate the filibuster on judicial nominations. I thought it was smart of them to make a stand on executive branch nominations, where the case for a supermajority is by far the weakest.

And that’s despite successful obstruction this year of judicial nominees Caitlin Joan Halligan and Elissa Cadish, not to mention several successful kills during Obama’s first term. Essentially, Democrats have signaled that they are willing to live with the minority-party ability to obstruct the occasional pick for the federal bench; after all, Democrats used that ability when George W. Bush was in the White House and they were in the minority.

However, if Republicans attempt to blockade the three vacancies on the key D.C. Circuit Court — filibustering Obama nominees with the preposterous claim that nominating judges for current vacancies is somehow an illegitimate case of “court-packing” — then Democrats will have little choice but to escalate — just as Democrats did when Republicans attempted “nullification” filibusters of any possible nominees to the National Labor Relations Board and other agencies in hopes of preventing those agencies from functioning.

Which gets to today’s party-line vote in the Judiciary Committee on the first of these nominees, Patricia Millet. The key is that none of the eight Republicans who voted against her did so on the basis of her qualifications; those who spoke out specifically said it had nothing to do with her. Which means, unlike when Halligan was defeated by filibuster earlier this year, there’s nothing Obama can do to compromise. They’re specifically saying that he can’t possibly send up an acceptable nominee.

Now, we don’t know yet what will happen on the Senate floor. Republicans could certainly vote against Millet and the others but also vote for cloture, allowing a final vote — which they would then lose. If that’s the case, no problem. Indeed, Sen. John McCain has already indicated that he supports a final confirmation vote on these nominees.

But if McCain can’t round up the votes for cloture, Democrats will have little choice. Republicans, with a 46-senator minority, have the votes for considerable leverage in the consensus-minded Senate, but they don’t have the leverage to get away with this. And they shouldn’t.

The bottom line about the filibuster is that the best arguments for it are that, in a practical sense, it helps empower individual senators — and on the theoretical level, it allows intense minorities to block indifferent majorities. It shouldn’t, and in the long run cannot, be used to allow election losers to dominate election winners. That’s what a blockade of the D.C. Circuit Court would mean, and Reid and the Democrats have an obligation to all those who voted for them, and for Obama, to shut this down.