Contraception Case Adds Fuel to Senate’s ‘Nuclear Option’ Debate

Patricia Ann Millett’s nomination to the District of Columbia Circuit Court of Appeals was filibustered on Thursday. (Bill Clark/CQ Roll Call)
Patricia Ann Millett’s nomination to the District of Columbia Circuit Court of Appeals was filibustered on Thursday. (Bill Clark/CQ Roll Call)
Posted November 1, 2013 at 3:42pm

A federal appeals court ruling Friday makes plain the reason that judicial nominations so often lead to chaos in the Senate: Like it or not, the courts affect policy.

Indeed, just as Senate Democrats began gearing up for a renewed fight over confirming more liberal judges to the U.S. Court of Appeals for the District of Columbia Circuit, that court handed down a ruling to invalidate the Obama administration’s requirement that health insurers pay for contraception.

Even before that decision, some Senate Democrats were already pushing for Majority Leader Harry Reid, D-Nev., to take the step of invoking the “nuclear option” to use a simple majority to effectively end filibusters of President Barack Obama’s nominees.

Advocates for going down that road renewed their push after Republicans successfully blocked two nominees on Thursday: North Carolina Democratic Rep. Melvin Watt to oversee Fannie Mae and Freddie Mac, and Patricia Ann Millett to fill a vacant seat on the D.C. Circuit Court.

Democrats’ desire to change the conservative bent of that court has been apparent. And Reid has, on several occasions, offered thinly veiled criticism of past Republican appointees.

“We put on some bad people on that court” because of a 2005 agreement, Reid told MSNBC on Wednesday.

The name Janice Rogers Brown will ring a bell to longtime observers of the Senate’s internecine tussles over nominations.

Brown, a judge appointed to the D.C. Circuit by President George W. Bush, authored Friday’s 2-1 opinion that found the contraception mandate in the health care law violates religious freedom.

In her opinion, Brown referred to Obamacare as “the behemoth known as the Affordable Care Act.”

Brown won confirmation to the powerful appeals court back in 2005, two years after her nomination, as part of a “gang of 14” deal that avoided the use of the nuclear option by then-Majority Leader Bill Frist, R-Tenn. Democrats now may be looking to craft a similar deal in which they win confirmation of a few judicial picks to that court. If not, the nuclear option appears to be on the table.

A group of relatively new Senate Democrats, led by Oregon’s Jeff Merkley, has been pushing to change the rules, some of them even before they arrived in the chamber.

“This will be something that cannot stand as it is. It’s damaging to the judicial branch. It’s damaging to the executive branch,” Merkley said after the votes Thursday. “I’ll certainly be advocating for us to secure in whatever fashion is needed the ability to not do this kind of damage to the other branches of government.”

“I hope we come back next week and seriously talk about changing the rules,” said freshman Sen. Christopher S. Murphy, D-Conn. “Conversation on rules change can’t happen fast enough. We are … risking becoming, you know, Charlie Brown to Republicans’ Lucy.”

Republicans haven’t yet seemed particularly concerned that Democrats will actually invoke the nuclear option with respect to lifetime appointments to the federal bench. Republican Whip John Cornyn of Texas said earlier in the week that he was not alarmed by the newest round of threats. Cornyn noted that this summer’s debate did not include Reid contemplating the nuclear option for nominations.

In fact, Reid specifically avoided including judges in that debate, focusing instead on temporary executive branch picks. Still, Merkley wants to open that door.

“Certainly it’s a discussion that today’s vote is going to create. That discussion hasn’t happened yet, so I can’t really enlighten you on it,” Merkley said Thursday.

Even after the dual filibusters, the lay of the land hasn’t changed much. Sen. Carl Levin of Michigan is still vocally against the nuclear option, one of a dwindling number in the Senate.

“I just think there are rules that will help us force people to filibuster if we will make the effort to do that — we’ll stay in the weekends, cancel the recesses to force people to filibuster, and the public is going to react the way they reacted to the last time Republicans stopped us from doing something, which was to keep government functioning,” Levin said Thursday.

“I’ve never favored using the nuclear option because what it means is that you are violating the rules to change the rules,” Levin said. “I favor changing the rules, but not by breaking the rules.”

Reid said while exiting the chamber after the vote that he would force test votes on two other D.C. Circuit Court nominees before contemplating other action.

The Nevada Democrat also said that he would call for repeat votes on the two nominees blocked Thursday.

“Something has to change, and I hope we can make the changes necessary through cooperation,” Reid said.

The prospects for that “cooperation” don’t seem particularly good currently, because GOP senators oppose anyone filling the vacancies. They argue that the court’s workload is too light. But Democrats have charged that the GOP is simply trying to retain the conservative bent of the powerful appeals court.

Fights over the D.C. Circuit court are often seen as proxies for future Supreme Court nomination battles. The conservative-leaning Supreme Court has already been asked to take up the constitutionality of the contraception mandate under a similar case involving the retailer Hobby Lobby.

Meredith Shiner contributed to this report.