Senate’s rule-changing ‘nuclear option’ may be getting close on judges

President says GOP ‘obstructionism’ on judicial nominees ‘unprecedented’

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Senate Republicans on Monday filibustered President Obama’s third and final nominee to sit on the powerful federal appeals court in Washington, leaving the chamber gridlocked and raising the possibility that Democrats will employ the “nuclear option” to change the chamber’s rules.

Judge Robert L. Wilkins was confirmed three years ago by a voice vote for his current job on the U.S. District Court for D.C., but he fell a half-dozen votes shy of the 60 needed to overcome a filibuster on his nomination to the U.S. Circuit Court of Appeals for the D.C. Circuit.

Democrats said the filibuster showed the level of politicization the GOP has injected into judicial nominations. “This obstruction is completely unprecedented,” President Obama said in a statement attacking the GOP for filibusters.

Last week Republicans filibustered law professor Cornelia T.L. Pillard, and in late October the GOP blocked Patricia Ann Millett, a lawyer who has argued dozens of cases before the Supreme Court.

Both sides have engaged in filibusters of the other party’s judicial nominees.

Democrats — including then-Sen. Barack Obama — pioneered the filibuster strategy with President George W. Bush’s picks, and Republicans have retaliated, saying they are holding Democrats to the same standard.

But Democrats say it has become worse than it was in the past, and many of them argue it’s time to change the chamber rules to allow judges to be confirmed on up-or-down votes, without the chance for a filibuster.

Still, after a decade of filibusters, both sides have built up plenty of ill will and arguments for retaliation.

Democrats said the Republican filibuster violates the terms of the 2005 Gang of 14 agreement that brought an end to Democrats’ filibusters of Mr. Bush’s nominees. According to that agreement, filibusters were justified only when a nominee faced major ethical or personal questions, not ideology.

Senate Majority Leader Harry Reid, Nevada Democrat, said under those rules, Judge Wilkins should be confirmed.

“No one is questioning his qualifications or abilities,” Mr. Reid said.

Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, countered that the Gang of 14 agreement applied only to the 109th Congress, and that after that, Democrats blocked another of Mr. Bush’s nominees for the same D.C. circuit, saying there wasn’t enough work to justify adding a judge.

“That standard may be inconvenient for Democrats today, but that is not a reason to abandon the standard that they’ve established,” he said.

Instead, Mr. Grassley said Democrats are trying to pack the D.C. Circuit, which is considered the most important court in the country other than the Supreme Court because it hears so many cases in which the federal government is a party, including its regulatory and other executive branch agencies.

GOP senators say the court has four full-time judges who were appointed by Republican presidents and four who were appointed by Democrats, and adding any more would break that balance. Republicans say the court, which is slotted for 11 judges, has barely enough work for the eight who are there now.

Democrats counter that there also are six senior judges, who are semi-retired and have a lighter workload but do hear some cases. Five of those are GOP appointees, which skews the ideological balance toward conservatives, Democrats claim.

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