Thursday, July 25, 2013

GOP DC Circuit Strategy Emerging

Yesterday the second of the three DC Circuit nominees, Nina Pillard, had her judiciary committee hearing; Todd Ruger reports.

The takeaway seems to be that after a hearing for nominee Patricia Millett in which Republicans focused on their bogus "court packing" story, Pillard has emerged as the main target, with lots of hot-button issues in her writings for them to attack. 

So here's what's going to happen, apparently. For Millett and for U.S. District Judge Robert Wilkins, the third nominee, we'll get lots of harumphing about workload in the DC Circuit court, and hard-liners will oppose cloture on that basis...but they'll fall short, perhaps by half a dozen votes. Both will be confirmed. Pillard, however, will have serious opposition, and it's probably more likely than not that she'll be killed by filibuster. 

That's all still speculative, but I it fits the situation. I very much doubt that Democrats are going to go nuclear over a single judicial nominee, especially if she's opposed on the merits (whether reasonable or not). If, however, Republicans really went along with Chuck Grassley's "court packing" nonsense and blockaded one or more spots on the DC bench...well, that would be a much bigger deal. As it is, a successful filibuster kill of the Pillard nomination along with two confirmations would mean that half of Obama's DC Circuit nominees this year were obstructed -- but Republicans can counter that the overall appeals court confirmation rate is far higher, and then confirm the next replacement.

Again, that's speculative. Perhaps Pillard will squeak through. Perhaps a more intense opposition will develop to one of the others. 

But I'm fairly confident that none of them will be blocked on "court packing" alone, which means that there's no (admitted) blockade of these seats, and therefore no real need for Democrats to go nuclear on judicial nominations. At least I don't think that an occasional circuit court filibuster kill is the kind of obstruction significant enough in practice to overcome Senatorial reluctance to lose the filibuster, nor do I think it's significant enough in theory,  for that matter. 

So far. We'll have to just see what comes next.


  1. I think the right way to think about this is how many does Obama need for Dems to get back control of the court. IIRC it's split now between active judges with a number of retired GOP appointees filling in as needed. Presumably the people who care about this stuff know what the difference is between getting 1, 2 or 3 judges through. The whole GOP strategy has been predicated upon denying Dems control of this court so all rulemakings on things like financial regulation, environment and energy would be done so in the shadow of a hostile judicial environment. So the GOP has already scored a huge win by forcing agencies to be much more timid than they would be if we had a normal confirmation process. Does 1 additional judge now change the rulemaking dynamic? Will 2 judges mean liberals can rest easy that EPA climate change regs and Dodd-Frank regs have a decent chance of holding up in the DC circuit at least? Does 3 make everything a lock? haven't a clue but I think that's the right way to think about it and then look at where the GOP will draw their lines in the sand. In an era of unprecedented Congressional gridlock and dysfunction with no end in sight, rulemaking becomes the main focus, and the DC circuit casts a huge shadow over the entire process.

  2. What does the GOP actually gain by stopping one nominee now and allowing another later?

    1. Two things. One is delay. They don't need many tricks to get that, but it seems like you're doing something. Second is that it probably hurts the long-term judicial prospects of whoever you stop.

      How many top-tier potential circuit nominees are there? I mean really top tier, the kind which could potentially be nominated for appeals courts, or for the Supreme Court eventually. Stopping an individual could potentially take them out of the running for future posts ("Too liberal for the circuit bench, no way we'll let them get onto the Supreme Court!", etc). Admittedly, this is pretty wild speculation, but it seems plausible that stopping every nth judge would weaken the overall pool.


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