Tuesday, June 4, 2013

Assumption GOP Will Blockade DC Circuit Is Probably Wrong

With the three DC Circuit Court of Appeals nominees finally getting named and sent to the Senate today, I'm seeing a lot of liberal pessimism about the next step. Kevin Drum says "We already know that Republicans are going to oppose all three of Obama's nominees...because, based on its caseload, the DC Court is too big and should be pared back by three seats." Matt Yglesias is even more convinced: "Note that precisely because the stakes are high here the odds of Obama succeeding are approximately zero." I know when I write about the possibility of a GOP blockade in these seats, I regularly get comments hitting me for suggesting that such a blockade is only possible, not virtually certain.

I guess we'll see soon enough, but I think this is wrong. For one thing, if Republicans really do choose to explicitly blockade the DC Circuit, it would almost certainly push Democrats over the edge into going nuclear. For another, the Republican record just hasn't been one of blockading Appeals Court nominees. Yes, lots of foot-dragging, and yes, 60 votes are required for all of them, and yes, most draw some opposition...and, yes, a few have been defeated. But that's all. The majority of Barack Obama's appellate nominees have eventually been confirmed -- and that's true whether Republicans had 40 or 41 or 47 or 45 seats in the Senate.

Here's my guess -- not a prediction, but just a guess based on past patterns. We'll continue to hear the insipid rhetoric about "court packing" and how the DC Circuit doesn't need any judges anyway, but that will be mostly just background music for the rubes. One of the picks will get through fairly easily. One will be killed by filibuster. And the third will be a close call, but probably get through, perhaps with a few Republicans voting yes on cloture but against confirmation. Those opposing picks will mainly focus on claims that the nominees are out of the mainstream ideologically, or will allege lack of proper judicial temperament, or some other such reason -- very few Republicans will claim that they are blockading the DC Circuit Court.

It's a guess, not a prediction. But I do think it's more likely all three will be confirmed than that all three will be defeated. Far more likely.

And what's more...if the Judiciary Committee, Harry Reid, and Barack Obama are aggressive about the schedule, including a replacement if one of the current nominees is defeated by filibuster, then all three seats will be filled during the current Congress.


  1. I think this all depends on your definition of the word "blockade." You're saying that the GOP won't "blockade" the nominees (I assume meaning that they won't place anonymous holds, preventing even a cloture vote), but you acknowledge that 60 votes have been required for every nominee, and surely will be required for these nominees.

    One of the things I've learned from this blog is that, when the out party in Senate makes 60 votes necessary to confirm, that is what we call a "filibuster."

    Drum and Yglesias seem to be only suggesting that Obama won't get any GOP votes for the nominees, which seems likely given the dearth of moderate Republicans in the Senate. Maybe 2 or 3 can be peeled off but that' wouldn't be enough to overcome a filibuster.

    In other words, there are at least 41 Republicans in the Senate right now that would pay no political price in 2014 for upholding a filibuster against these nominees. For that reason, I think it's far more likely that none of them get confirmed.

    1. Yes, all three will be filibustered -- that is, need 60.

      But by "blockading" I mean that 41 or more will vote against cloture for any possible nominee, and I don't think that will happen. It is happening with a few exec branch spots -- e.g. NLRB -- but not with judges so far.

      It might happen, but it would be a significant escalation from what they've done so far.

    2. But hasn't the GOP been *more* obstructive with high-level judicial nominees than they have been with high-level exec nominees? If I read you right, you're saying they'll change tactics here to suddenly feel more strongly about blocking the latter (NLRB, EPA, cabinet, etc.), not the former (highest appeals, Sup Ct).

  2. Possibly why a fourth name was floated...

  3. To judge from the contours of Reid's floated July nuclear test, I don't think we can consider the fate of these three judicial nominations separately from the fate of the existing executive branch nominations of Cordray, Perez, and McCarthy. In fact, I think at least 2 of these will be the nuclear linchpin.

    With 6 nominations in play, Reid's calculus will be a lot more difficult than just, say, backing down from the nuclear ledge if 2 of 3 judges are confirmed, and pressing the button if only 1 is confirmed.

    With 6 in play, the question of where Reid/Obama/Dem's threshold will be is very tricky.

    The biggest wild card is Cordray. He represents not just a department head, but the proper, and duly legislated, functioning of the department itself. Both sides are intractable on this. If Republicans make it clear that they will forever filibuster Cordray, and if Reid plays the timing right, he could build up significant leverage in public opinion and within his caucus to demand an up or down vote for ALL 5 of the others. And threaten to go nuclear if he doesn't get it.

    Now, say Reid isn't that bold. What does happen? Does he accept 4 out of 6, with Cordray going down again, and 1 judge being defeated? That would give them 2 judges, plus Perez and McCarthy. Reid and Obama probably would take that, without going nuclear. And that would be a pretty good win.

    But would they take any less? Is 4 the absolute threshold? The GOP is almost as dead set against Perez and the NLRB as they are against Cordray and the CFPB. Do we think they will wave Perez through?

    If not, what does Reid do? I don't think he can accept 3 out of 6. At that point I think he has to go nuclear. And I think to maximize his leverage, it has to be after it's clear both Cordray and Perez will not make it. Because that's where the GOP is inflexible, and that's where the Dems have their strongest and clearest argument for abolishing the filibuster for nominees: to remove the Republican threat to the proper functioning of government.

    This is the hardball way to win. Reid and Obama seem to get that this fight has to be fought and won in public. That back room leadership deals are over, at least until the Dems assert their will by winning this public fight.

    1. This is interesting because recent fading Senate norms have always seemed to be that the minority has greater right to block judicial nominees than executive ones. And that, as a result, filibuster/cloture reform would target executive nominee obstruction, not judicial. But it seems as if the GOP Senators are not strategizing within these categories. Instead, they're thinking in terms of specific issues: finance, labor, etc. -- whether or not the nominee matter pertains to the judicial or executive branch. Thus the question becomes how crucial GOP leaders consider the DC circuit in regulating financial and labor law, as compared to the heads of the associated executive bodies. If they have to choose, does Cordray pass through or does a judge that might give the executive branch broad scope to regulate the banks through Dodd-Frank?

  4. This is all foreplay for the eventual replacement of a conservative justice on the SCOTUS. That is when nuclear and conventional weapons will be used freely and often.

  5. Mr. Bernstein, I think you're right here and that the GOP will take a scalp or two and then pack it in. However, doesn't this run counter to your previous assertion that the GOP might filibuster indefinitely ANY nomination President Obama might make to the Supreme Court? It's hard for me to imagine Harry Reid going nuclear over the DC court but lying back when it comes to the Supreme Court.


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