Going ‘Nuclear’? Democrats Ratchet Up Talk on Judicial Picks

Posted April 8, 2013 at 6:01pm

Senate Democrats appear to be setting the stage for a major battle over President Barack Obama’s judicial nominations, a fight that threatens to reignite raw partisan emotions over filibuster rules and the “nuclear option.”

Facing what he said were unwarranted delays of Obama’s court picks, Majority Leader Harry Reid, D-Nev., alluded last week to the possibility that he would move to prevent Republicans from blocking judicial nominations. By Monday, both sides sought to highlight recent cooperation, and the fight has yet to bubble to the surface with a public standoff on the Senate floor. But that, too, may be coming.

New York Sen. Charles E. Schumer, the No. 3 Democrat in the chamber, hinted last month at an emerging strategy focused on daring Republicans to filibuster more judges this year. The conservative news website CNS News picked up on Schumer’s comments, which were delivered at a dinner shortly after Republicans successfully prevented Democrats from getting a filibuster-proof, 60-vote majority on Caitlin J. Halligan’s nomination to a seat on the powerful D.C. Circuit Court of Appeals.

“Our strategy will be to nominate four more people, for each of those vacancies, and if they filibuster all of them, it will give those of us who want to change the rules and not allow 60 votes to dominate the Senate — but require a talking filibuster — to prevail. So, we will fill up the D.C. Circuit, one way or the other,” Schumer reportedly said at the time.

The D.C. Circuit Court of Appeals handles a host of important cases about government operations, and Democrats have blasted delays in getting the court up to full strength during Obama’s administration. They contend that GOP senators are intentionally preventing seats from being filled to maintain a majority of conservative judges.

The effort to fill the appeals court “isn’t on the radar screen, but we need the progressive community to be behind it,” Schumer said in a clip posted on YouTube. “There are now four vacancies on that court, and it’s dominated by the hard right.”

Schumer noted that the D.C. Circuit Court of Appeals has overturned environmental regulations on coal plants and “rendered the [Securities and Exchange Commission] impotent by saying the SEC can’t pass rulings unless they do what’s called a cost-benefit analysis, which ties any rulings to go after our financial institutions in knots.”

He also blasted a decision by the court to declare unconstitutional Obama’s recess appointments to the National Labor Relations Board in a sweeping decision that also casts doubt on the appointment of Richard Cordray to be the first head of the Consumer Financial Protection Bureau.

Since the Halligan fight, liberal groups have grown even more vocal about the vacancies on the D.C. Circuit, with some also criticizing Obama for not acting more swiftly to send nominations up to the Hill. Judiciary Committee Republicans make the same point.

“Somehow confirming 178 judges and declining to confirm two in the President’s first term constitutes obstruction. No matter how hard you try, you can’t spin the fact that out of the 87 judicial vacancies in the federal courts, 62 of them don’t have nominees,” Beth Levine, a spokeswoman for ranking member Charles E. Grassley of Iowa, said in a statement to CQ Roll Call.

Reid’s April 5 comments on Nevada public radio may have been an opening salvo intended to get Republicans to allow more high-level judicial nominations through or face the risk of seeing the majority leader move unilaterally to change the Senate’s rules with a simple majority.

“If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action,” Reid said.

White House Press Secretary Jay Carney on Monday also slammed the continuing delays and obstruction of the president’s judicial nominees, but he stopped short of endorsing Reid’s implied threat to use the nuclear option against judicial filibusters.

Carney said there has been a consistent pattern of judicial nominees being blocked for months at a time, although he noted that there has been some improvement so far this year.

“We share Sen. Reid’s frustration, and we hope that the Senate continues to improve,” he said.

The Washington Post reported last week that Obama has made personal appeals for his judicial nominees in recent meetings with Senate Republicans. Before Reid’s remarks, senators had already reached agreement on a Tuesday afternoon confirmation vote for Patty Shwartz to a seat on the Philadelphia-based federal appeals court, but the next real test may come over Principal Deputy Solicitor General Srikanth Srinivasan’s nomination to a seat on the D.C. Circuit Court of Appeals, the same court to which Halligan was nominated. Obama remains the only president to serve a full four-year term without successfully nominating a judge to the U.S. Court of Appeals for the D.C. Circuit.

The Senate Judiciary Committee is scheduled to hold a confirmation hearing Wednesday for Srinivasan. Advocates have been touting Srinivasan’s bipartisan support from, among others, former solicitors general and Supreme Court clerks.

Steven T. Dennis contributed to this report.