By the standards of judicial nominees, there’s nothing objectionable about Cornelia Pillard, President Obama’s choice for one of the three vacancies on the D.C. Circuit Court. But this didn’t stop Senate Republicans from filibustering the nomination into oblivion. This, it should be said, makes her the second nominee in as many weeks to face near-unanimous opposition from Republicans who want to maintain their advantage on the DC Circuit. Three of the eleven seats are vacant, and filling them would nix the court as a vehicle for blocking Obama’s legislative agenda.
In fairness to Republicans, few have outright said that this is the reason for blocking Pillard and Patricia Millett. Instead, most cite the workload of the DC Circuit as a reason to maintain the vacancies. On Tuesday, for example, Senate Minority Leader Mitch McConnell called the court “so underworked that it regularly cancels oral argument days,” and that “there wouldn’t be enough work to go around” if the Senate confirmed additional judges.
This is nonsense. The Constitution doesn’t set a work requirement for individual judges, it simply says that presidents have the right to fill vacancies. Citing “workload” is just an attempt to obscure the issue. For a look at what actually motivates Republicans, there’s Texas Senator John Cornyn, who has been forthright about his opposition:
Likewise, Sen. Chuck Grassley (R-Iowa) has all but said that his concern is the ideological balance of the court. Pushing against Democratic efforts to end judicial filibusters, he warned that “There are a lot more Scalias and Thomases out there that we would love to put on the bench,” signaling the extent to which he knows that this is a fight about the ideological character of the federal judiciary.
Yes, at several points during George W. Bush’s tenure, Democrats filibustered his judicial nominees. But the issue isn’t filibustering as much as it is the GOP’s categorical opposition to Obama’s nominees. His nominations have faced an unprecedented level of obstruction, leading to widespread vacancies and judicial emergencies. Overall, Obama has had fewer federal judges confirmed than either Bush or Clinton.
Republicans aren’t concerned with the workload of the court and aren’t defending a particular principle. They simply want to keep Obama from leaving his stamp on the federal judiciary. Democrats have a choice. They can nuke the filibuster and defend the president’s prerogative, or, they can let the GOP establish a new precedent, where the Senate only confirms Republicans nominees.