Rule-chang­ing ‘nu­clear op­tion’ may be get­ting close

Pres­i­dent says GOP ‘ob­struc­tion­ism’ on ju­di­cial nom­i­nees ‘un­prece­dented’

The Washington Times Daily - - Politics - BY STEPHEN DINAN

Se­nate Repub­li­cans on Mon­day fil­i­bus­tered Pres­i­dent Obama’s third and fi­nal nom­i­nee to sit on the pow­er­ful fed­eral ap­peals court in Wash­ing­ton, leav­ing the cham­ber grid­locked and rais­ing the pos­si­bil­ity that Democrats will em­ploy the “nu­clear op­tion” to change the cham­ber’s rules.

Judge Robert L. Wilkins was con­firmed three years ago by a voice vote for his cur­rent job on the U.S. Dis­trict Court for D.C., but he fell a half-dozen votes shy of the 60 needed to over­come a fil­i­buster on his nom­i­na­tion to the U.S. Cir­cuit Court of Ap­peals for the D.C. Cir­cuit.

Democrats said the fil­i­buster showed the level of politi­ciza­tion the GOP has in­jected into ju­di­cial nom­i­na­tions. “This ob­struc­tion is com­pletely un­prece­dented,” Pres­i­dent Obama said in a state­ment at­tack­ing the GOP for fil­i­busters.

Last week Repub­li­cans fil­i­bus­tered law pro­fes­sor Cor­nelia T.L. Pil­lard, and in late Oc­to­ber the GOP blocked Pa­tri­cia Ann Mil­lett, a lawyer who has ar­gued dozens of cases be­fore the Supreme Court.

Both sides have en­gaged in fil­i­busters of the other party’s ju­di­cial nom­i­nees.

Democrats — in­clud­ing then-Sen. Barack Obama — pi­o­neered the fil­i­buster strat­egy with Pres­i­dent Ge­orge W. Bush’s picks, and Repub­li­cans have re­tal­i­ated, say­ing they are hold­ing Democrats to the same stan­dard.

But Democrats say it has be­come worse than it was in the past, and many of them ar­gue it’s time to change the cham­ber rules to al­low judges to be con­firmed on up-or-down votes, with­out the chance for a fil­i­buster.

Still, af­ter a decade of fil­i­busters, both sides have built up plenty of ill will and ar­gu­ments for re­tal­i­a­tion.

Democrats said the Repub­li­can fil­i­buster vi­o­lates the terms of the 2005 Gang of 14 agree­ment that brought an end to Democrats’ fil­i­busters of Mr. Bush’s nom­i­nees. Ac­cord­ing to that agree­ment, fil­i­busters were jus­ti­fied only when a nom­i­nee faced ma­jor eth­i­cal or per­sonal ques­tions, not ide­ol­ogy.

Se­nate Ma­jor­ity Leader Harry Reid, Ne­vada Demo­crat, said un­der those rules, Judge Wilkins should be con­firmed.

“No one is ques­tion­ing his qual­i­fi­ca­tions or abil­i­ties,” Mr. Reid said.

Sen. Chuck Grass­ley of Iowa, the rank­ing Repub­li­can on the Se­nate Ju­di­ciary Com­mit­tee, coun­tered that the Gang of 14 agree­ment ap­plied only to the 109th Congress, and that af­ter that, Democrats blocked another of Mr. Bush’s nom­i­nees for the same D.C. cir­cuit, say­ing there wasn’t enough work to jus­tify adding a judge.

“That stan­dard may be in­con­ve­nient for Democrats to­day, but that is not a rea­son to aban­don the stan­dard that they’ve es­tab­lished,” he said.

In­stead, Mr. Grass­ley said Democrats are try­ing to pack the D.C. Cir­cuit, which is con­sid­ered the most im­por­tant court in the coun­try other than the Supreme Court be­cause it hears so many cases in which the fed­eral gov­ern­ment is a party, in­clud­ing its reg­u­la­tory and other ex­ec­u­tive branch agen­cies.

GOP se­na­tors say the court has four full-time judges who were ap­pointed by Repub­li­can pres­i­dents and four who were ap­pointed by Democrats, and adding any more would break that bal­ance. Repub­li­cans say the court, which is slot­ted for 11 judges, has barely enough work for the eight who are there now.

Democrats counter that there also are six se­nior judges, who are semi-re­tired and have a lighter work­load but do hear some cases. Five of those are GOP ap­pointees, which skews the ide­o­log­i­cal bal­ance to­ward con­ser­va­tives, Democrats claim.


Sen. Chuck Grass­ley of Iowa, the rank­ing Repub­li­can on the Se­nate Ju­di­ciary Com­mit­tee, defends the value of the fil­i­buster on ju­di­cial nom­i­nees, say­ing Democrats are try­ing to pack the U.S. Cir­cuit Court of Ap­peals for the D.C. Cir­cuit.

Judge Robert Wilkins, who sits on the U.S. Dis­trict Court for D.C., didn’t have the votes of 60 se­na­tors Mon­day to over­come a fil­i­buster for his nom­i­na­tion to the higher U.S. Court of Ap­peals for D.C.

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