It appears that President Obama will finally nominate judges for the three remaining vacancies on the D.C. Circuit Court of Appeals. Republicans are objecting, with Mitch McConnell saying that “The whole purpose here is to stack the court.” Obama’s response should be: Damn right! The Democrats won the presidential election and have a solid majority in the Senate; of course they are going to “stack” the courts with their nominees. That’s exactly how the system is designed to work.
What would be new and unprecedented would be Republicans attempting to refuse to confirm any Obama nominees. Indeed: attempting to shut down three seats in one court would be new and unprecedented even if Republicans had a Senate majority. To do it as a minority party? I can’t think of any reasonable justification for it. And if the GOP does attempt it, Harry Reid and the Democrats would really have no other option than to “go nuclear” and eliminate the filibuster.
To be sure: There is nothing unprecedented about singling out an occasional nominee as “out of the mainstream” and opposing her on that basis. Nor would it be unprecedented for a minority party to use the filibuster in an effort to bring down that “extreme” nominee. And I’ll argue that it is entirely reasonable in principle for the minority to do so, although there’s no fixed, objective way of determining whether any nominee is “really” out of the mainstream or at what point the minority is abusing its ability to defeat nominees by filibuster.
Still, opposition is clearly more legitimate when it comes from a Senate majority than from a Senate minority, and late in a president’s term than soon after the election. And it’s certainly more reasonable when it is targeted at a single nominee, and supported by specific and reality-based reasons — and remember, Republicans have already defeated by filibuster one nomination for this court. At any rate, when a minority does it, the obvious check on that minority’s influence is the threat of Senate reform.
One more important caveat (well, actually two — we don’t actually have any nominees yet, and the White House has been known to promise action on that front without delivering): We still don’t know how Republicans will act. Yes, they’re making a lot of threatening noises about “stack the court” and even the entirely disingenuous claim that filling the empty seats is “court-packing,” a term which could far better be applied to Chuck Grassley’s plan to eliminate the vacant seats altogether. But it’s one thing to complain about the president getting his way; it’s another to actively, simultaneously attempt to defeat by filibuster three nominees and any potential replacements Obama might nominate. It’s very possible that the response, once these nominations are sent up, will be bluster, not obstruction.
If Republicans attempt to block these nominations, however — or if they expand their already aggressive efforts to defeat by filibuster Obama’s circuit-court nominees — then, yes, we can expect majority-imposed Senate reform. The Democrats really would have no other realistic choice.