Have you seen the workload of the Supreme Court? It’s far lower than that of any appeals court. There’s no way that the Senate should approve any new nominee if a vacancy happens during the remainder of Barack Obama’s presidency.
Or at least that’s one of the “arguments” we may hear from Senate Republicans if Democrats allow Republicans to block by filibuster three seats on the U.S. Court of Appeals for the District of Columbia Circuit. Cloture for the first, Patricia Millett, was defeated today, with only two Republicans crossing over and voting to allow the nomination to move forward, even though Republicans all thought the nominee was acceptable. Instead, they concocted an ad hoc and basically laughable argument that this important court just didn’t need to have its vacancies filled. Who knows? Maybe Republicans will block a Supreme Court nominee because it’s an important principle to have an even number of justices. Or because of the “principle” that no president should get more than two nominees. Truth is, I’m not creative enough to anticipate this one. But you know it’s coming.
Supermajority confirmation of federal judges isn’t without some merit. Putting at least some limitations on the ability of one party to dominate the courts for decades just because it won a presidential election is a reasonable procedural choice. Democrats did not move to eliminate filibusters when Republicans blocked by filibuster a previous D.C. Circuit choice, and rightly so; as long as the minority only goes after a relatively small number of individual nominees, the rules work reasonable well for both sides.
I should note: While only a few previous Obama judicial nominations have been killed by filibuster, virtually every one has had to overcome a filibuster, something that had not been the case before 2009. Even when Republicans are not united against nominations, the fact of the filibuster slows down confirmation and eats up Senate time that could be spent on other matters. Moreover, Republicans have been aggressive in blocking judicial nominees in other ways. So it’s not as if this D.C. Circuit blockade comes out of nowhere. It’s part of a pattern of massive obstruction by a Senate minority to the normal operation of the government, in this case the filling of judicial vacancies.
Eleven months ago, the voters sent Barack Obama back to the White House and returned a solid 55-vote majority for the Democrats in the Senate. If Democrats don’t act now to ensure that judges can be nominated and confirmed — by threatening, and if necessary carrying out, majority-imposed reform in the Senate — then they are betraying those voters and themselves. As a supporter of fixing, not ended, the filibuster, I’m not at all pleased that Democrats must take this step, but Republicans are leaving them with no choice. I expect Harry Reid and even the most reluctant Democrats to agree. If the minority Republicans refuse to use the filibuster responsibly, then the Democratic majority will simply have to eliminate it.
What today’s vote makes clear is that if Democrats don’t fight now, they’ll have to fight if there’s a Supreme Court vacancy. Because you can be absolutely certain that Republicans will invent some reason that they can’t allow that one to be filled, either.