Is Barack Obama finally ready to fight? His announcement, reportedly coming this week, of three nominees to sit on the District of Columbia federal bench sure makes it look like he is. You may not know or care who fills these vacancies, but believe me, politicians care about the D.C. bench passionately—in the 1980s it was, arguably, more important than the Supreme Court itself, the instrument and cynosure of the Reagan/“originalist” remaking of the federal judiciary. Putting three names forward for that court at the same moment is a hugely aggressive play—very uncharacteristic of Obama, and maybe a signal that he’s finally finished with the overripe come-let-us-try-to-reason-together phase of his presidency.
Happening at the same time are three more executive-branch appointments. Obama is going to spend the summer pushing, and the Senate tussling over, those. That’s six big nominations coming up all at basically the same time. Democrats need to win five of them and secure a change in Senate rules at least with respect to executive-branch nominations. All this will be happening while Congress is considering the immigration bill. So the stakes this summer are high, and the result will set the tone for the closing years of the Obama presidency—whether he’ll be in a position to wrest some concessions from the Republicans, or whether the stalemate will continue (or, worse, descend into crazed efforts to either remove him from office or at least besmirch his historical reputation).
The D.C. Circuit has leaned right, as I noted, since Reagan. It was a hot little nest of vipers at its height, back in the Clinton era, when its judges were allegedly parts of plots to destroy Clinton and when they parted the waters for special prosecutor Ken Starr to find any dirt he could on Clinton. Now it has four Republican-appointed judges and, as of last week, four Democratic-named ones, since the Senate confirmed (unanimously, I note) Sri Srinivasian, who sat in limbo for months.
There are six more “senior” judges who are retired but are sometimes randomly assigned to cases, and five of those are conservative, so there is still ground to be made up. The court happens to have released several conservative opinions of late, including a key decision against an SEC rule that was an important part of the Dodd-Frank financial-reform law, and another curtailing a president’s (“a president’s”—funny, isn’t it, who happens to be the president right now!) ability to make recess appointments.
So what is Obama going to do? What is Harry Reid going to do, and, maybe most important of all, what is Mitch McConnell going to do? Here is the point where liberal hopes are high—and maybe unrealistically so. Now, the three executive-branch appointments come into play. They are, in ascending order of controversy, Penny Pritzker for Commerce, Gina McCarthy for the EPA, and Tom Perez for Labor.
Pritzker is a walk-through—Republicans aren’t going to waste political capital on the Commerce Department. McCarthy and Perez, as we already know, are different stories. McCarthy already lost one committee vote, then won a second. Perez makes Republicans see, well, red, so to speak. Of course, everyone, the three judicial nominees and these three, need not 50 but 60 votes to get through.
There’s been talk of changing the rules so that these six would need only 50 votes. But making that change needs 50 votes. And a Senate Democratic aide tells me that 50 votes are not there on the Democratic side for changing the rules with respect to judicial nominees. Executive-branch appointments yes, judges no. Some Democrats, mindful of the day when Republicans control the White House and Senate again, are still nervous about lowering the threshold for judges.
Odds are that McConnell may ultimately let McCarthy through, I’m told, but will move heaven and earth to block Perez, and either one or two of the judicial appointments, depending on how much heat he’s feeling inside his caucus. If it were two, that would risk giving Obama a .500 batting average on these six. That’s not good enough.
Republicans are doing the usual crazy stuff, calling Obama’s effort “court-packing”—which it is not; court-packing is trying to increase the number of seats on a court, as Lincoln and FDR tried to do—and even putting forward legislation to eliminate the three vacant seats!
It’s hard to win when you face opposition like that. And maybe it’s not easy to get regular Americans to care very much about your appointments. But somehow Republicans sure managed to get their base fired up about all this back in 2005, when the postures were reversed. If Obama and the Democrats can get these judges (and Perez) confirmed, it will first of all dramatically alter the character of the D.C. Circuit, such that it may actually uphold progressive legislation like the SEC rule recently struck down. And more immediately, it will show that Obama is playing a different kind of baseball.
I hope that he knows now (it took him long enough!) that there is no sitting down and reasoning with these people. There is only beating them—or losing to them. It’s not the democracy I’d prefer, and it’s not the presidency he’d have preferred, but it’s the one he has. He may finally have accepted this reality.