After the Supreme Court, the D.C. Circuit Court of Appeals is the nation's most important appellate court. It has jurisdiction over challenges to executive orders, federal regulations and decisions of many federal agencies on topics, as Nan Aron, President of Alliance for Justice, notes, like the environment, consumer protections, workers' rights, banking regulations, executive power, and other vital issues." Four of the current Supreme Court justices sat on the D.C. Circuit (Roberts, Ginsburg, Thomas and Scalia).
The court is currently evenly split (4-4) between Democrat and Republican-nominated judges, with three vacancies. President Obama has nominated three extremely qualified judges to fill the three empty seats (after already withdrawing the nomination of another unassailable choice who was blocked by Republicans earlier this year). Two of the three have already been filibustered by Senate Republicans, who intend to block the third, advancing the specious argument that Obama is engaged in court-packing when he is merely filling existing vacancies.
Republicans claim the D.C. Circuit, with its relatively smaller (although exceedingly complex) caseload doesn't need all 11 judges. Of course, as Harry Reid pointed out, the contention that 11 judges are not needed it "not what they said when President Bush filled several vacant seats on the court. When George W. Bush was President, Senate Republicans happily filled the 9th, 10th and 11th seats on the D.C. Circuit -- the same three seats President Obama seeks to fill today -- even though the court had a smaller caseload at the time."
Republican hypocrisy doesn't end there. Recall those bygone days when Democrats used the filibuster effectively to thwart some of George W. Bush's more extreme judicial appointments (although not by any means all of them). Republicans argued back then that use of the filibuster was not just wrong, it was unconstitutional. They threatened to employ the so-called "nuclear option," to change the Senate rules to preclude filibusters for judicial nominees. Of course, the Democrats blinked. Seven Democrats joined seven Republicans to form the "Gang of Fourteen," and signed an agreement in which the Republicans in the gang would not vote for the nuclear option and the Democrats would not filibuster except in "extraordinary circumstances." In practical terms, this meant that Bush was able appoint the conservatives he wanted to the bench and the Democratic minority, without the seven members of the gang, could not stop him. Thus, five nominees who had originally been filibustered, and several other conservatives, became federal judges, and, perhaps most significantly, Samuel Alito's nomination to the Supreme Court was permitted an up-or-down vote. He was confirmed by a vote of 58-42, with enough Senators voting against him to have successfully filibustered and prevented a vote on his confirmation.
Republicans, now in the minority, are blatantly violating the agreement not to filibuster judges except in extraordinary circumstances but Democrats are balking at going nuclear. Recalcitrant Democrats fear that when they are in the minority, a Republican president could nominate a right wing radical to the Supreme Court and Democrats would no longer have the filibuster as a tool to stop it. Indeed, Charles Grassley, the senior Republican on the Senate Judiciary Committee, explicitly threatened that if Democrats eliminate the filibuster it would be easier for a future Republican president to appoint more justices like Antonin Scalia and Clarence Thomas: "All I can say is this -- be careful what you wish for. . . So if the Democrats are bent on changing the rules, then I say go ahead. There are a lot more Scalias and Thomases that we'd love to put on the bench. The nominees we'd nominate and put on the bench with 51 votes would interpret the constitution as it was written."
Of course, if there were a Republican president and Republican majority and Democrats tried to employ the filibuster, Republicans would either go nuclear anyway, or the Democrats would cave as they did in the last go round. Moreover, what makes anyone think that the Democrats would filibuster a Supreme Court nominee? There are already four right wing radicals on the high court and Democrats failed to use the filibuster to stop any of them. To review, Scalia was nominated by Ronald Reagan in 1986. The Democratic minority, perhaps distracted by the (ultimately unsuccessful) fight over Justice Rehnquist's nomination for Chief Justice, joined Republicans to approve Scalia unanimously. In 1991, with Democrats in the majority, the Senate voted in George H.W. Bush's nominee, Clarence Thomas, by a vote of 52-48. George W. Bush's nomination of John Roberts for Chief Justice was approved by a vote of 78-22, and as discussed above, Alito was confirmed after an agreement not to filibuster.
Republican abuse of the filibuster to prevent a president from filling vacancies no matter who is nominated so as not to tip the majority on the court is unprecedented. If successful, what is to stop them from blocking nominees in every other court where the ideological split would potentially change in the Democrats' favor -- even the Supreme Court?
The "nuclear" option is really a misnomer. It is the Republican Party that is using the filibuster as weapon of mass destruction -- a weapon to upend the democratic process. As George W. would say, it is because "they hate what they see right here in this chamber: a democratically elected government . . . They hate our freedom . . ." The smoking gun might not be a mushroom cloud, but if the Democrats refuse to change the filibuster rules and allow Republicans to block Obama's nominees for the D.C. Circuit, they may as well cede the federal judiciary branch -- indeed, our federal government -- to a Republican cabal for the foreseeable future.
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