- The Washington Times - Thursday, October 31, 2013

Senate Republicans on Thursday filibustered one of President Obama’s nominees to sit on the U.S. Court of Appeals for the D.C. Circuit, arguing that although the woman is well-qualified, confirmation would allow Democrats to shift the political balance to the left on the country’s second most important court.

The vote was the latest skirmish in the fierce though usually behind-the-scenes battle over federal judgeships, which are increasingly becoming a part of the political spoils system.

Republicans accused Democrats of trying to pack the court by adding Patricia Millett to the bench, saying Mr. Obama and Senate Majority Leader Harry Reid, Nevada Democrat, are still smarting from several rebukes the court has dealt to their agenda, including a high-profile decision ruling the president’s recess appointments unconstitutional.

The court hears many key appeals from federal regulatory agencies, which is why it is regularly called the second most important court in the country, behind the Supreme Court.

“They think they can shift the balance there and be able to advance their agenda throughout the judicial process,” said Sen. Jeff Sessions, an Alabama Republican who was an early casualty of the judicial wars when Democrats blocked his nomination to a federal judgeship in 1986.

Democrats — Mr. Reid in particular — have been open about their desire to flip the court to a more liberal ideological slant. In an interview with NPR this summer, the majority leader said he was furious with the panel that ruled against Mr. Obama’s recess appointments and called its three judges “terrible.”

“We need at least one more. There’s three vacancies, we need at least one more and that will switch the majority,” Mr. Reid said in that interview.

The court is slated for 11 full judges but now seats just eight: four appointed by Republican presidents and four by Democrats. The court also has six senior judges who can hear cases, but just one of those was appointed by a Democratic president.

Mr. Reid said this week that his effort to get Ms. Millett confirmed is not about packing the court and called the charge “ridiculous.”

“Making nominations to vacant judgeships is not court-packing. It’s the president’s job,” he said on the Senate floor.

He praised Ms. Millett as someone who has argued dozens of cases before the Supreme Court, and pointed to her support from top lawyers in both political parties as evidence that she deserves to be on the court.

Joining Democrats in backing Ms. Millett were two Republicans: Sen. Susan M. Collins of Maine and Lisa Murkowski of Alaska, but that still left Democrats well shy of the 60 votes needed to overcome a filibuster. Three Republicans voted “present.”

Ms. Millett wasn’t the only nominee delayed by a filibuster Thursday. Republicans also blocked Rep. Melvin L. Watt, North Carolina Democrat, whom Mr. Obama tapped to head the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac. Republicans said they wanted someone immersed in the key financial issues, rather than a politician, to take the post.

The Republican moves reignited questions about whether Democrats will use the “nuclear option” to change Senate rules to eliminate filibusters.

Speaking with reporters this week, Mr. Reid was coy about whether he would trigger the nuclear option.

Democrats pioneered the partisan filibuster of appeals court judges a decade ago when they blocked Miguel Estrada, a highly touted lawyer whom President Bush nominated to the Appeals Court for the D.C. Circuit. That was followed by repeated filibusters — so many that Senate Republicans, including Mr. McConnell, tried to change the rules and eliminate filibusters of judges.

The effort was headed off by a bipartisan group of 14 senators who agreed to oppose a rules change but also agreed that filibustering had become out of hand and should be used only in “extraordinary circumstances.”

They approved a number of Mr. Bush’s nominees who had been delayed, though they rejected a couple of others as too extreme.

Ironically, Mr. Estrada — who had withdrawn his nomination by that point — was one of the lawyers who argued against Mr. Obama’s recess appointments to the D.C. circuit.

The vote Thursday offered more evidence that the gentleman’s agreement signed by the Gang of 14 is gone — not least because many of its members have retired or died.

One of those still in the chamber, Sen. John McCain, Arizona Republican, said the Millett nomination met his test for a filibuster.

“It is my judgment as a United States senator that extraordinary conditions exist,” he said.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Judiciary Committee, scoffed and noted that nobody was questioning Ms. Millett’s credentials. He accused Republicans of playing partisan politics and said blocking Ms. Millett could trigger the nuclear option.

Each side marshaled statistics to argue over whether another judge is needed on the D.C. court.

Republicans said Democrats blocked one of Mr. Bush’s qualified conservative nominees to the court, asserting that there wasn’t enough work to justify adding him to the bench.

Since then, Republicans said, the number of appeals that have come to the court has dropped 20 percent and the number of written decisions per active judge is down 30 percent. Indeed, Mr. McConnell said, one member of the court complained that there won’t be enough work to go around if another judge is seated.

Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, has introduced legislation to reduce the total number of allowed judges on the D.C. court from 11 to eight.

But Democrats say the D.C. circuit’s opinions are more complex than other appeals courts’ cases, which means that their caseload may be lower but their workload is just as tough.

Democrats say Mr. Obama’s nominees to the D.C. court have waited seven times longer for confirmation than Mr. Bush’s nominees.

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