Republicans are united on blocking President Obama’s judicial picks. Partisan battleground: Court picks

The Senate’s bitter fight over President Barack Obama’s nominations will intensify this week as the chamber turns its attention to the high-profile D.C. Circuit Court of Appeals.

The key bench — viewed by many as the country’s second most powerful court and a farm team for the Supreme Court — is already at the center of a Senate standoff over nominations. Just this year, one nominee was forced to withdraw, and another was blocked by Republicans, infuriating Democrats.


Senate Majority Leader Harry Reid (D-Nev.) is raising the stakes of the ongoing confirmation wars by scheduling a Tuesday vote on Nina Pillard’s nomination to fill one of three vacancies on the D.C. Circuit. Republicans aren’t backing down and plan to reject Pillard and later block another Obama nominee for the court, Robert Wilkins — perhaps as soon as next week.

Senate Republicans and Democrats agree on this: Obama wants to infuse the important court, whose duties include arbitrating conflicts between the federal government and private companies, with like-minded justices, just as any other president seeks to do. But the two parties are deeply divided over the size of the court and its workload.

Republicans believe the court doesn’t need additional judges beyond the current bench of eight and refuse to relinquish their ability to reject nominees they believe are unqualified or unnecessary. Democrats see parallels in the court fight to this summer’s ugly conflict over executive nominees.

They’re particularly frustrated because they feel the GOP opposes judicial selections not on the basis of qualifications but on the office they seek. Some Democrats are even suggesting that Republicans are willing to approve male nominees to the court but not women.

In May, the Senate approved the nomination of Sri Srinivasan but nominee Caitlin Halligan withdrew her nomination after failing a procedural vote in March. In October, the GOP withheld approval for D.C. Circuit nominee Patricia Millett, breaking several months of confirmation peace since a July compromise that averted a neutering of the filibuster through majority vote, known as the “nuclear option.”

Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) compared Millett’s qualifications with those of Supreme Court Chief Justice John Roberts — who once served on the D.C. Circuit — and suggested a GOP double standard.

“He was confirmed unanimously; all Republicans and all Democrats voted for him. There’s actually a tougher caseload now, bigger caseload now than there was when he was confirmed,” Leahy said, carefully placing emphasis on the gender of Roberts and Millett. “I’m not sure why she, she can’t be confirmed, but he, he could be. Think about it.”

A group of Senate Democrats, including Amy Klobuchar of Minnesota and Maria Cantwell of Washington state, took to the floor Friday ahead of this week’s expected GOP stonewalling of Pillard.

“Why are these qualified female judge nominees being blocked? Just 32 percent of U.S. Appeals Court judges are women,” Cantwell asked on the floor. “You have to ask yourself: Do we have to get women elected to the United States Senate to get women on the Judiciary Committee, to get women on the courts, because our colleagues aren’t going to do that?”

After her speech, Klobuchar declined to directly charge Republicans with sexism but noted that former President George W. Bush got four of his justices — three male, one female — approved to the court. Srinivasan is currently the lone Obama pick on the D.C. Circuit.

“Our focus is on the fact that these are qualified, qualified women,” Klobuchar said. “This is an opportunity [for more], and there is absolutely no reason to deny them.”

Despite scars from recent jousts over confirmation, Republicans are united on blocking Obama’s judicial picks.

“I don’t expect any difference in the outcome,” said Senate Minority Whip John Cornyn of Texas, who has led the Republican strategy this fall to stand against adding more liberal-leaning justices to the D.C. Circuit until seats are reallocated to other courts.

The GOP’s argument should sound familiar to Democrats: It’s the same one they made during Bush’s presidency.

“We’ve accepted the Democrats’ position that the court is not busy. And now they’ve accepted our position that they need another [judge]. The roles have reversed,” said Sen. Rand Paul (R-Ky.).

Senate Democratic leadership insists the full-court press on judicial nominees is not an attempt to force another fight over changing the Senate’s rules to limit the minority’s filibuster rights by a majority vote — the nuclear option.

So while the battle over the D.C. Circuit elicits many of the same charges of obstructionism that Democrats deployed this summer, Reid says the conflict is simply about installing competent judges.

“I view it as a qualified woman who should be on the court,” Reid told POLITICO of Democrats’ position.

If Republicans reject Pillard and Wilkins, Senate Democratic leaders are plotting to force another series of votes on those nominations along with Millett and Rep. Mel Watt (D-N.C.), who Republicans blocked from assuming leadership of the Federal Housing Finance Agency. If the GOP again rejects all four nominees, a reexamination of Senate rules could follow in December, according to leadership aides, though Reid said he hasn’t decided how to proceed.

In the meantime, Democrats are getting cranky over the Senate’s inability to deliver Obama his nominees, particularly given that the House refuses to consider much of the legislation the Senate sends over.

“There’s a huge amount of frustration in our caucus. And [Republicans] haven’t come up with a single objection to the individuals. And that’s getting very close to the line that forces us to act,” said Sen. Chuck Schumer (D-N.Y.).

Sen. Jeff Merkley (D-Ore.), one of the most vocal critics of the GOP’s tactics on nominees, said he is prepared to make the case that Republicans seek “to undermine the fair rhythm of nominations to the judiciary” by trying to preserve the current judicial balance.

“It’s a simple calculation that this is an extremely important court. They want to make sure that it’s dominated by nominees from the Bush administration,” Merkley said.

Even though Reid nearly moved to eliminate Republicans’ ability to block Obama’s executive nominees just four months ago, the GOP is unbowed at quiet threats from Democrats that they will face parliamentary consequences for blocking Obama’s judicial recommendations. Part of the GOP playbook is to reassert the fact that Republicans won’t be forced into confirming nominees that they oppose simply because they fear Democratic retribution.

Sen. Lindsey Graham, a veteran of the war over nominations who is bracing for a difficult 2014 primary campaign, said he took “some votes not very comfortable for me” in July to break the filibusters of long-stalled executive nominees like Gina McCarthy to lead the Environmental Protection Agency and Richard Cordray to lead the Consumer Financial Protection Bureau. But just because he helped break that logjam doesn’t mean he and others in the GOP should be expected to give Obama’s nominees a free pass.

“I don’t know what [Democrats] are up to. But the July agreement could not have ended with: ‘The Republicans will say yes to everything all the time,’” Graham said. “I’m not going to be in the spot where I can’t object forever.”