Judge Not

The Senate appears to be headed to another filibuster showdown because no one trusts anyone anymore.

Patrick Leahy
Senate Judiciary Committee Chairman Patrick Leahy casts opposition to female judicial nominees as opposition to women.

Photo by Chip Somodevilla/Getty Images

On Tuesday evening, as they’d expected, Senate Democrats watched helplessly as one of President Obama’s judicial nominees was filibustered. Cornelia Pillard, a 52-year old law professor at Georgetown, would have been the fourth woman on the D.C. Circuit Court of Appeals.* And Democrats had leaned hard on that fact. “Just say we don’t want women on this court,” rasped Judiciary Committee Chairman Patrick Leahy in the final pre-vote floor speech, browbeating Republicans.

The accusations of bias and sexism, remarkably, did not win over the GOP. Only two Republican senators (Maine’s Sen. Susan Collins and Alaska’s Sen. Lisa Murkowski) voted to allow a vote on Pillard, after which Leahy led a posse of Democrats to TV cameras and microphones to denounce the GOP as a pack of woman-demoting deal-breakers.

“You cannot say that one president can have his way on qualified judges, and another president can’t have his way—that you can have qualified men but not qualified women,” said Leahy. “You know, I’ve been here longer than anybody else serving in the Senate. I’ve always tried to protect the rules in Republican majorities and Democratic majorities, because my experience has been they were used responsibly. Very, very rarely were they used to filibuster. That’s become a thing of the past. I think we’re at the point where there will have to be a rules change.”

A rules change? This, again? Leahy was asked what was different between November 2013 and the spring of 2005, when Republicans swore they’d break the filibuster to cram through their own blocked nominees. The “Gang of 14,” seven Democrats and seven Republicans, cut a deal to let most of the nominees through but preserve the 60-vote veto.

“We had a lot of Republicans who said at that time there should only be a filibuster in the most extraordinary circumstances,” said Leahy. Then, without warning, he smacked the podium he was speaking behind. Thwack. “Each one of those Republicans who said that has filibustered on this! Their credibility is shredded.”

There’s a lot of that going around, these claims of lost credibility, hypocrisy, and bias. Democrats, distracted at the moment by the pitchfork-wielding mobs asking why their private insurance plans were canceled, are slowly building up to another filibuster fight. At issue are the three open seats on the D.C. Circuit, currently divided 4–4 between Republican and Democratic appointees, and currently the premier threat to Democratic legislation. It was Republican appointees on the D.C. Circuit who invalidated Obama’s recess appointments to the National Labor Relations Board, and it was Republican appointee Janice Rogers Brown—confirmed by the 2005 Gang of 14 deal—who ruled against the administration’s contraception mandate last month.

Republicans, led by Iowa Sen. Chuck Grassley, have remained largely unified in a campaign to block any new nominee to the circuit. Their strategy: lock in the current 4–4 court by eliminating the empty seats and redistributing them to other circuits, because some other courts (ones that aren’t the first recourse for people suing Congress over legislation) have more cases. “In 2012, there were 512 ‘administrative appeals’ filed in D.C.,” said Grassley on Tuesday. “In the 2nd Circuit, there were 1,493. Stated differently, in D.C. there were only 64 administrative appeals per active judge. The 2nd Circuit has nearly twice as many with 115.”

That framing, which seemed like a stretch—no one also denies that the D.C. Circuit gets more pivotal cases than the 2nd Circuit—has since been universally adopted by the right. Ohio Sen. Rob Portman, the sort of Republican whom Democrats like to cut deals with, has endorsed Grassley’s Court Efficiency Act because it would “bring a reasonable end to the destructive partisan fights to which both parties have contributed.” A third-party ad hitting Arkansas Sen. Mark Pryor (a Gang of 14 member) right now accuses him of trying to “pack a key court with liberal judges” because he doesn’t want to eliminate the three open seats. Grassley points out that Democrats blocked a 2006 Bush nominee on the grounds that the seat didn’t need to be filled—what more evidence does he need?

“We’re going by the standards that Democrats set in 2006,” said Grassley after Tuesday’s vote. “They said that we didn’t need any more judges. And that’s exactly what I’m telling ’em, what they said! We’re just doing what they said. They set the standard and they can’t say we’re doing this because we’ve got a Democratic president, because I got a judge removed, the 12th one removed, when we had a Republican president.” The newest Democratic attack line, that to oppose female nominees was to oppose women, did not move Grassley. “When I voted for 75 women judges, they want to tell me I’m against women?”

Only three Republican members of the Gang of 14 still serve in the Senate. Two of them, Arizona Sen. John McCain and South Carolina Sen. Lindsey Graham, voted with Grassley on Tuesday. Utah Sen. Orrin Hatch voted present, as he often does to protest the new filibuster standards. But he didn’t disagree with what Grassley was saying.

“Let’s face it, it’s outrageous that anybody backs the Democrats on this after what they did a few years back,” said Hatch. “The arguments they made, if they were valid then, they’re even more valid today. There’s no reason to stack that court so they can get legislation they could never get through the Congress.”

Running through all of these arguments is a powerful vein of mistrust. Democrats know very well that they may lose the Senate in 2014. Even a banner year will probably feature a couple of losses, making court fights even harder to win. And they remember the result of the 2005 compromise: Republicans got most of what they wanted. So why shouldn’t Democrats start up another round of rules-change-mania? What’s the worst that could happen?

“Talking to senators, one gets the sense that they know that if there is a Republican president and a Republican majority, they will force up-and-down votes because they demonstrated their commitment to that principle in 2005,” said Oregon Sen. Jeff Merkley, the de facto leader of the rules-reform caucus. “There is, in a democracy, power that goes with the voice of the people. When people elect a president, there are electing him for his nominating powers as well as his management.”

Republicans shrug this off, with contempt. “They ought to do that!” said Grassley. “Then when we have the majority, when we have a Republican president, we put more people like Scalia on the court. Here’s the point: They’re going to regret it if they do. I don’t think they’re going to be dumb enough to do it. But if they do it, the way they’re playing this game now, with these sorts of agreements—they’re getting everything they want but we’re not getting anything out of it. We need a level playing field.”

That’s not what Democrats are offering. They’re expecting a third nominee to be filibustered, which could then kick open the filibuster-reform door. “I don’t think that’s gonna happen,” said Hatch of the possible rule change. “If they want to do that, it’s the stupidest thing they could possibly do. They’d rue the day that happened. Sooner or later there’ll be a time … ” The senator trailed off. “Republicans would not let them get away with it, and what goes around comes around.”

*Correction, Nov. 13, 2013: This originally misstated that Cornelia Pillard is African-American. (Return to the corrected sentence.)