Democrats inched closer to another "nuclear" rules standoff Tuesday evening on the heels of another filibuster vote on one of President Barack Obama's nominees to the D.C. Circuit Court of Appeals.
Several Democratic senators, led by Judiciary Chairman Patrick J. Leahy of Vermont, met with reporters late Tuesday with another round of warnings about the chances that not filling the seats on the appellate court could lead to a "nuclear option" rules debate.
"I've said it before and I'll say it again. There comes a tipping point, and I'm afraid we've reached that tipping point," Majority Whip Richard J. Durbin of Illinois said at the news conference. "We cannot ask people in good faith to submit their names and reputations to this judicial process if they're going to be treated so unfairly and unjustly by the Republicans and their filibusters."
"My experience is they've been used responsibly. Very, very rarely you'd see filibusters. That seems to become a thing of the past. We see more filibusters in a year than I saw in 35 years," Leahy said. "I think we're at the point where there will have to be a rules change. You cannot say that one president can have his way on qualified judges, another president cannot have his way, or we can vote for qualified men but not qualified women. ... It does not help in any way the credibility of the United States Senate."
At one point during the news conference, Leahy slammed the lectern in frustration, saying that some GOP senators from the 2005 "gang of 14" deal that averted a "nuclear option" change to the Senate's nomination procedures for judges back then were voting against cloture on the Obama picks.
Both parties were reprising familiar arguments about the caseload on the circuit court Tuesday, with GOP senators contending that there are too few cases filed to fill the three remaining vacant seats, a charge that Democrats dispute for several reasons, including an argument about the complexity of the cases on the docket.
Advocates for changing the Senate's cloture rules with a simple majority vote sounded emboldened by the recent D.C. Circuit votes, including Oregon Democrat Jeff Merkley.
"This obstruction is outrageous. In baseball, it's three strikes and you're out. Republicans have struck out when it comes to keeping their promises on nominees. In January the Minority Leader promised to return to the 'norms and traditions' of the U.S. Senate on nominations, which is to hold an up and down vote with rare exceptions," Merkley said in a statement. "Given that shattered promise, a majority of Senators must change the rules to restore the Senate to its historic role."
The latest exchange came after 56 senators voted in favor of invoking cloture — and thus limiting debate — on Obama's choice of Georgetown Law Professor Nina Pillard to a seat on the D.C. Circuit, falling short of the 60 needed to break a filibuster. That followed a similar vote Oct. 31 on the nomination of prominent lawyer Patricia Ann Millett to a seat on the same court.
Judiciary ranking member Charles E. Grassley, R-Iowa, offered a floor speech Tuesday that was something of a prebuttal to statements issued by Merkley and New Mexico Democrat Tom Udall after the vote.
"Many of those on other side who are clamoring for a rules change — and almost falling over themselves for it — have never served a single day in the minority. All I can say is this: be careful what you wish for," the Iowa Republican said on the Senate floor. "I've come to the conclusion that if the rules are changed, at least we Republicans will get to use them when we're back in the majority."
"If the Democrats are bent on changing the rules. Go ahead. There are a lot more Scalias and Thomases out there we'd love to put on the bench," Grassley said, in reference to conservative Supreme Court justices Antonin Scalia and Clarence Thomas.
Asked about Grassley's comments, Leahy said that neither Scalia nor Thomas faced an actual filibuster.
"The nominees we'd nominate and confirm with 51 votes will interpret the Constitution as it was written," Grassley said. "They are not the type who would invent constitutional rights out of thin air."
"I've always been, I hope, an independent voice on judicial nominees, and I've always thought that a president deserved his team. If they are qualified, he should nominate them," California Democrat Dianne Feinstein said. "It's really, I think, [a] very disillusioning thing because in this body, what goes around comes around."
Feinstein's comments suggest another possibility: an impasse that leads to continued federal court vacancies regardless of the party in power.
Still, Republicans aren't convinced of how far the Democrats would want to go. When the Senate floor opened for business on Tuesday afternoon, Minority Leader Mitch McConnell, R-Ky., criticized the Democrats' focus on the D.C. Circuit seats as a diversion with the beleaguered rollout of Obamacare.
"If our Democratic colleagues are going to ignore the fact that millions of people are losing their health insurance plans, they should at least be working with us to fill judicial emergencies that actually exist, rather than complaining about fake ones," McConnell said.