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Nuclear Option Helped Obama Refashion Bench

(Bill Clark/CQ Roll Call)

Ten months after his fellow Democrats “went nuclear” in the Senate on his behalf, President Barack Obama is done putting his stamp on the federal judiciary — at least for the year, but maybe forever if Republicans take control of the place.  

Majority Leader Harry Reid’s decision to exercise the so-called nuclear option , which he and his predecessors from both parties had threatened for more than a decade, created the biggest change in the congressional rules since the 1970s. Taking away the filibuster as a weapon for defeating nominees has given Obama nearly free rein this year in populating his own administration and the regulatory agencies.  

Even more importantly, last November’s historic power play allowed the president to brush past intense GOP objections and reclaim an important outlet for perpetuating his legacy: Filling lifetime positions on the courts with like-minded judges who will still be serving long after Obama’s second term is over.  

That probably will stop cold if the Senate switches partisan control come January. While Republicans can’t prevent votes on Obama’s choices while in the minority, they would be under no obligation to schedule any roll calls for his nominees if they’re the majority.  

No matter what the electorate decides in seven weeks, Obama has already succeeded in his bid to refashion the bench — and the nuclear option has played a significant role. He has filled 30 percent of all the seats on the circuit courts of appeal, with a crucial 13 of those 53 judges confirmed since the filibuster was neutered. The bottom line result is that appointees of Democratic presidents are now the majority on nine of the 13 appellate courts — a nearly total reversal since Obama took office, when 10 had majorities of GOP appointees. (Thanks to four confirmations that launched the Senate’s post-nuclear era, the most important transformation was effected at the D.C. Circuit Court of Appeals, the second-most influential bench in the country after the Supreme Court because it hears so many challenges to federal regulations.) Given that achievement is so firmly in hand, it may come as little surprise that Obama has allowed his bench-packing campaign to slow to a crawl since the summer.  

Although he’s now appointed one-third of the 675 judges on the trial bench, he’s made selections for only half of the five-dozen current openings on those district courts and has sent just three of those names to the Senate since the end of July.  

His efforts to populate the appeals courts, meanwhile, effectively concluded for the year one week ago. That was when the Senate ended one of the more unusual chapters in this year’s judicial wars by voting 97-0 to put prominent Atlanta civil litigator Jill Pryor on the 11th Circuit.  

The absence of public dissent belies intense discord and maneuvering that started behind the scenes fully 32 months ago and continues to fester now. The circumstances help explain why Obama has not proposed anyone to fill the seven current appeals court vacancies — and may continued to be stymied even if Democrats continue to run the Senate in the 114th Congress.  

Pryor was first nominated in February 2012 without the advance blessing of her home state’s senators, Georgia Republicans Johnny Isakson and Saxby Chambliss. And getting those parochial endorsements — in the form of signatures on a form known as a “blue slip” — has by longstanding practice been a prerequisite to a nomination advancing through the Judiciary Committee. So, even after the system for killing nominees with dilatory floor maneuvers was swept away, Chairman Patrick J. Leahy, D-Vt., kept Pryor in limbo because his Georgia colleagues wanted it that way. The Republicans, in other words, were permitted to invoke the blue slip custom as an alternative form of filibuster.  

The impasse appeared to be broken earlier this year with the equivalent of a six-player blockbuster trade: The White House permitted Chambliss and Isakson to fill the other 11th Circuit vacancy (they chose to promote U.S. District Judge Julie Carnes) and to decide who should get three of the four open seats on the district court in northern Georgia. In return, the senators agreed to support Pryor.  

Despite her confirmation on Sept. 8, the bargain is far from consummated. The lower-court nominees have all stalled because many rank-and-file Senate Democrats and liberal interest groups cannot stomach one of them. That's Georgia Court of Appeals Judge Michael Boggs, whose socially conservative record as a state legislator included support for retaining Confederate insignia on the state flag, banning same-sex marriage in the state constitution and curtailing abortion rights on several fronts.  

Judiciary has not scheduled a vote on Boggs, because Sheldon Whitehouse of Rhode Island looks to be his only Democratic supporter on the panel – and only because he says he wants to be deferential to tradition and his Georgia colleagues. But without Boggs, the other would-be Georgia judges look likely to also stay stuck, because the GOP views this as an all-or-nothing arrangement.  

All seven open appeals court seats are assigned to states with at least one Republican senator, and none of those lawmakers has liked any names of potential nominees.  

More ideological deals with the devil like the one for Georgia may be the president’s only option for further shaping the bench during his lame-duck years, when the GOP looks to either control the Senate or retain some form of the blue slip as a powerful dilatory weapon. Given the confirmation success Obama has already cemented, such bargains may not be worth his while.  

   

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