Reid's 'Nuclear Option' Looms as Judicial Nominees Stall

WASHINGTON – Senate Democratic Leader Harry Reid is threatening anew to change the chamber’s filibuster rules if the pace of confirmations for nominees to the federal judiciary, often the targets of Republican stalling tactics, doesn’t speed up.

In an interview aired last week over Nevada Public Radio, the Nevada lawmaker warned that the Senate “is going to have to take more action” if recalcitrant Republicans “don’t start approving some judges and don’t start helping get some of these nominations done.”

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary,” Reid said.

The remarks raise the specter of invoking what commonly is characterized as “the nuclear option” — transforming Senate rules through a simple majority vote of those present. Rules changes generally require a two-thirds vote in the 100-member chamber.

Senate Democrats and Republicans agreed to some modest rules changes at the outset of the 113th Congress intended to make it easier to work around a filibuster. But Reid and other Democrats are growing increasingly irritated at GOP efforts to delay President Obama’s nominees to the federal bench, particularly at a time when the number of vacancies is becoming critical.

The American Constitution Society for Law and Policy, a progressive legal organization, reports that 86 of the 874 seats in the federal judiciary — almost 10 percent — are vacant. An additional 22 seats are likely to open up soon and 35 judicial emergencies exist on the district court and court of appeals levels. Nineteen nominees are waiting for a floor vote.

Senate Republican Leader Mitch McConnell, of Kentucky, insisted on Tuesday that his caucus is cooperating in getting the judicial seats filled. At this juncture of his presidency, about three months into his second term, Obama’s predecessor, former President George W. Bush, saw no new judges confirmed.

“With regard to vacancies, about 75 percent of the vacancies that we have in the judiciary don’t even have nominees,” McConnell told reporters. “So we have treated the president’s judicial nominations very, very fairly by any objective standard.”

Some presidential nominees have waited more than a year for the Senate to decide their fate, often because Republicans are standing in the way of a vote. One seat on the U.S. Court of Appeals for the District of Columbia Circuit, generally considered a stepping stone to the U.S. Supreme Court, has been vacant since September 2005. Obama’s nominee for that post, Caitlin Halligan, general counsel for the district attorney’s office in Manhattan, recently asked that her name be withdrawn from consideration after GOP lawmakers, led by McConnell, blocked consideration.

Halligan was originally nominated to fill the seat once held by Supreme Court Chief Justice John Roberts in September 2010, meaning she didn’t receive a full Senate vote for more than two-and-a-half years. Her nomination was initially filibustered in 2011.

Four vacancies exist on the 11-judge D.C. Circuit, which often is called on to consider vital constitutional matters and handles numerous regulatory matters, including challenges to rules created by the Environmental Protection Agency. No nominee has successfully navigated Senate confirmation to that particular bench since 2006.

Republicans expressed concern that Halligan would prove to be a liberal activist on the court, citing her work in New York to hold gun manufacturers civilly liable for the arms they produce. McConnell said that in considering Halligan’s “record of activism” that giving her a lifetime appointment to the D.C. Circuit was “a bridge too far.” The president didn’t see it that way.

“This unjustified filibuster obstructed the majority of senators from expressing their support,” Obama said in a statement. “I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction. The D.C. Circuit is considered the nation’s second-highest court, but it now has more vacancies than any other circuit court. This is unacceptable. I remain committed to filling these vacancies, to ensure equal and timely access to justice for all Americans.”

Now there is talk that Republicans plan to filibuster another Obama nominee to the D.C. Circuit — Sri Srinivasan, the principal deputy solicitor general. His confirmation hearing before the Senate Judiciary Committee is set for April 10.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said the federal courts have spent the last four years unnecessarily burdened by a high vacancy rate.

“Regrettably, qualified consensus nominees are being delayed — even nominees who are supported by home state Republican senators,” Leahy said. “They are subjected to unnecessary and unprecedented delays on the Senate floor. These nominees have been vetted in a lengthy process and often have the support of all senators on the Judiciary Committee, so there is no reason we cannot consider them in regular order.”

But, Leahy said, Republicans “have consistently refused to consent to what used to be the routine consideration of consensus judicial nominees,” forcing Reid to file cloture on 30 of Obama’s nominees — a rate 65 percent higher than the number of times cloture was invoked during the eight-year administration of former President George W. Bush, a Republican.

“There is no good reason the Senate cannot consider them more expeditiously,” Leahy said. “These deliberate delaying tactics hurt the Senate, our courts and the American people.”

Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution, a Washington think tank, determined that under Obama it takes an average of 610 days from the time a vacancy occurs at the district court level to a Senate floor vote. During the Bush administration that length of time was 420 days and under President Bill Clinton, a Democrat, it was 447.

The pace is better for court of appeals nominees — 454 days for Obama compared to 509 for Bush and 483 for Clinton.

But the number of Obama nominees who are actually confirmed is comparatively low. According to Wheeler, 78 percent of Obama’s district court nominees were confirmed as of Dec. 12, 2012, compared to 95 percent for Bush and 86 percent for Clinton. On the court of appeals level, 71 percent of Obama’s nominees have been confirmed, compared to 67 percent for Bush and 77 percent for Clinton.

“More district judges were confirmed than were confirmed in any of the previous eight Congresses,” said Sen. Charles Grassley (R-Iowa), ranking member of the Senate Judiciary Committee. “For circuit nominations, President Obama has the highest percentage of confirmations over the past four presidential terms. In total, the Senate has confirmed 171 district and circuit nominees.”

Grassley said he intends to continue working with Leahy and committee members “in treating President Obama’s nominees in a fair manner.”

“In doing so, I will maintain my approach in evaluating the qualifications of judicial nominees,” Grassley said. “As I have previously stated, I want to ensure that the men and women who are appointed to lifetime positions are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament and professional competence. Above all, judicial nominees must have a respect for the proper role of a judge in our system of checks and balances — that is to decide cases and controversies according to the facts of the case and established law and precedent. A judge’s role is not to create law or make public policy.”

Obama bears some responsibility for the high vacancy rate and has drawn criticism for his slow nomination pace. According to Wheeler, vacancies have increased during Obama’s tenure while, in general, they declined under Bush and Clinton. The increase was due primarily to the president offering up comparatively fewer nominees.

By the end of their third year in office, both Bush and Clinton had submitted more than 90 percent of their district court nominees. Under Obama it was a bit more than 75 percent.

But the president appears to be moving more quickly in his second term. Since January he has nominated almost 40 judicial candidates and more are expected over the next few months.