The debate over whether Senate Democrats should deploy the "nuclear" option and shut down filibusters to get their way on nominations is on track to take another step this week.
President Barack Obama could send over a full slate of nominees to fill vacant seats on what’s known as the nation’s second-highest court.
Democrats view the judicial positions as a key test in deciding whether to try to change the chamber’s nomination rules with a simple majority vote sometime this summer, a point that Sen. Charles E. Schumer, D-N.Y., made during a May 23 news conference with the Democratic leadership team.
He made similar comments at a little-noticed Democratic dinner in March, an indication that this game plan has been in the works for some time.
Senate Majority Leader Harry Reid, D-Nev., told reporters that same day that he had discussed vacancies on the D.C. Circuit Court of Appeals with Rob Nabors, the White House deputy chief of staff. Reid hinted that the names for the three seats that remain vacant after confirmation of Sri Srinivasan could be unveiled soon.
The New York Times advanced that story in Tuesday’s paper by identifying some potential nominees for the posts.
The Senate confirmed Srinivasan last week, 97-0. An Indian immigrant who grew up in Kansas before a distinguished legal career working for the government and in private practice, it’s no secret that Srinivasan is on the shortlist of Supreme Court contenders.
“We may be seeing him coming before the Senate — again soon,” Schumer said last week.
Confirming Srinivasan is the latest move in an ongoing nomination chess match.
Republicans contend that the other D.C. Circuit seats are not necessary because the court has a lighter workload than other federal appellate courts. Judiciary ranking member Charles E. Grassley, R-Iowa, introduced a bill last month to eliminate one of the judges and move two others to other circuits.
“The caseload is one half of what the average is of all the others, and it’s lower than everyone except for one other circuit,” Grassley said, previewing the upcoming disagreement. “Every one of these [judgeships] costs more than $1 million.”
“The bill does not directly impact today’s nominee, but it will reallocate unneeded judgeships from the D.C. Circuit to other federal appellate courts where caseloads are many times higher than that of the D.C. Circuit,” Republican Sen. Mike Lee of Utah said on the Senate floor. “Especially after we have confirmed Mr. Srinivasan, I hope members on both sides of the aisle will join me in ensuring that these unnecessary D.C. Circuit judgeships are reallocated to courts that need those judge slots.”
Asked by a reporter about Grassley’s proposal, Reid noted that one judgeship on the appeals court has already been eliminated. He also questioned the logic used by Republican senators.
“See, they look at number of cases, but the number of cases at the D.C. Circuit is somewhat misleading because their cases are extremely complex with rare exception,” Reid said.
Schumer contended that Republicans were seeking to stop confirmations to the D.C. court to try to keep ideological control of it.
“What we have here, whether it’s the judiciary ... financial services, labor and the rest of the government. We have a small number of senators who believe that the more they can strangle government the better America is.
“Unfortunately, a handful of them say they don’t want to move forward and the Republican caucus moves in lock-step, and nowhere has this been worse than on the judiciary, particularly the D.C. Circuit, which controls so much of what the government does, and so they’re a lodestone of the hard right to make sure they control the D.C. Circuit,” Schumer said at the news conference.
The D.C. Circuit has proved a troublesome place for the Obama administration. Panels of judges from the court have invalidated the Environmental Protection Agency’s rulemaking on cross-state air pollution and, of interest to the Senate, declared that intrasession recess appointments should be null and void. Another federal appeals court reached a similar conclusion on May 16.
If the Supreme Court agrees, there would be far-reaching implications for the recess appointment power (as well as decisions by the National Labor Relations Board and the Consumer Financial Protection Bureau, since those agencies have recess appointees).
Still, Republicans cautioned the administration against going down the road of moving ahead with the D.C. court nominees.
“I certainly hope neither the White House nor my Democratic colleagues will instead decide to play politics and seek — without any legitimate justification — to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda,” Lee said.