Let’s say you are a prominent member of America’s legal community—a solicitor general in New York; a law professor at the University of California, Berkeley; or a respected criminal defense lawyer in Arizona—and you’ve been chosen for a federal court position by the president of the United States.
Congratulations! It’s a high honor. But you have a few steps to take. You have to go through an extensive background check, commissioned by the Senate Judiciary Committee. You have to sit as a gaggle of politicians question your life experience and your qualifications. You have to answer questions about your work, your approach to the law, and in an oblique way, your political views. And then, once you’ve gone through the lengthy, tiring process, the committee will hold a vote on your nomination. They’ll either agree to support you, or not, and then recommend your confirmation or rejection to the full Senate, which is responsible for the final decision.
For most of the last century, this has been a straightforward and uncontroversial process. Yes, there have been exceptions—times when presidents nominate judges who are far out of the mainstream—but for the most part, the Senate confirms who the White House selects. Over the last four years, however, the process has hit a snag. Republicans have been relentless in obstructing the flow of judicial confirmations under President Obama. As of this week, there are 79 vacancies on the U.S. Circuit Courts and Courts of Appeal. Just a few of them have been filled, and for some the GOP is deliberately blocking Obama from naming replacements, regardless of qualifications. Overall, Republicans have filibustered Obama’s judicial nominees at a higher rate than the picks of any other president in modern memory.
It’s hard to overstate the damage this has done to Obama’s agenda. The D.C. Circuit Court of Appeals, in particular, has played an important role in stymieing the administration. Even with last week’s confirmation of Sri Srinivasan to the court, it has a conservative majority preserved by the GOP’s obstruction of Obama’s nominees. Indeed, as Scott Lemeiux notes for The American Prospect, “Obama has filled only 25 percent of the vacancies on the D.C. Circuit that have existed since the beginning of his term.”
This conservative majority has struck down regulations on Wall Street, the environment, and health care. Late last year, for example, it ruled in favor of two religious schools suing for exemptions from the Affordable Care Act’s contraception mandate. And earlier this year, it all but read recess appointments out of the Constitution.
All of this is why you should pay close attention to President Obama’s decision to fill the three vacancies on the D.C. Circuit Court of Appeals. The nominees—Cornelia Pillard, David Frederick, and Patricia Ann Millett—are qualified, capable candidates for judicial service. With the simultaneous nomination, Obama is daring the GOP to act. With past nominees to the D.C. Circuit Court, Republicans have cited “extraordinary circumstances” to justify their filibusters. In this case, however, Republicans would have to conjure three such circumstances, a plain instance of obstructionism.
This isn’t a stretch for Senate Republicans, who can conjure any reason for opposing the president’s priorities. But it could trigger unwanted consequences. Senate Majority Leader Harry Reid has begun to threaten rules reform by a simple majority—what lawmakers call the “nuclear option.” He has the president’s support and moreover, as Greg Sargent reports for The Washington Post, he has “privately signaled” Reid to take that route if Republicans filibuster all three nominees to the D.C. Circuit Court.
The immediate GOP response has been, essentially, that this is unfair. “The whole purpose here is to stack the court,” said McConnell, as quoted by The New York Times. But when you consider a Republican proposal to remove three seats from the D.C. Circuit and move them to other courts around the country, it’s clear the opposite is true: the GOP is trying to stack the court by blocking nominations and denying a chance to balance the conservative majority. The D.C. Circuit has been their springboard for rear-guard actions against the administration, and they want to preserve it. If McConnell sounds frustrated, it’s because he’s aware of his poor position. This fight has one of two outcomes, and they’re both wins for Obama.
Either Republicans filibuster the nominees, and Democrats change Senate rules with the “nuclear option,” giving him more flexibility to pursue his agenda, and breaking a key tool for GOP obstruction or Republicans allow the process to go unimpeded, and the nominees are confirmed to the circuit court, breaking the GOP’s hold and blunting one of their most effective platforms for opposition.
In both cases, Obama emerges with new advantages, which as Jonathan Chait points out for New York magazine, will be critical as he begins to move on the environment and other issues.
Filibusters and judicial nominations aren’t glamorous issues. They aren’t interesting to the public, and they weren’t even a huge priority for Obama during his first term. But they’re where the president will make his stand against the GOP’s categorical opposition to governance. If he’s successful, it will be one of the major victories of his presidency and—perhaps—the beginning of the end for the Republican Party’s “fever.”