Thursday, November 14, 2013

Court-Packing or Exercising Constitutional Authority?

     It appears the nuclear option has reared its ugly head yet again.  Again, Harry Reid and Senate Democrats are upset with Republicans for blocking two judicial nominations by President Obama in the last two weeks.    President Obama is trying to fill vacancies on the DC Circuit Court of Appeals which is revered by many to be the second most powerful court in the country behind the Supreme Court.
     Republicans first blocked Patricia Millett's nomination two weeks ago with a 55-38 vote, failing to reach the 60 vote threshold.  It appears as if this choice by Republicans was sponsored by ideology for fear that Millett would tip the balance on the court.  At the time of the blocked nomination, an editorial ran in the right-leaning Washington Examiner stating that Senator Reid and the Democrats are pushing for a liberal court-packing effort.  The editorial concedes, "Millet has argued more cases before the U.S. Supreme Court - 32 - than any other woman in the country... So there are no questions about her overall qualifications for a federal judicial appointment. The relevant issue is the blatant attempt by Reid and other Senate Democrats to push the D.C. appeals court to left."  So why block her nomination? 
     On Tuesday, Cornelia T. L. Pillard, a Georgetown law professor, fell short in the Senate by a vote of 56-41.  Republicans overwhelming objection to her is her record on abortion.  Conservative media has referred to her as a "pro-abortion extremist."  The third nominee is Robert L. Wilkins, a current federal district court judge and winner of several honors for his litigation, made it out of the Senate Judiciary Committee but is facing an arduous floor vote.    
     Democrats are furious over the flippant attitude demonstrated by Republicans toward President Obama's nominations.  Republicans are maintaining, "they don't have any problems with the nominees themselves, they don't think the D.C. Circuit is busy enough to warrant filling its three vacant seats."  Harry Reid has introduced the potential of the nuclear option again toward judicial nominees, not necessarily to all floor votes.  Democrats seemed to win this battle over the summer with Majority Leader Mitch McConnell blinking and allowing President Obama's nominees to pass cloture.  Republicans are not going to be so soft this time with certain members such as Charles Grassley (R-IA) stating that "There are a lot more Scalias and Thomases that we’d love to put on the bench," referring to future conservative nominees they could appoint by a simple majority if the nuclear option on judicial nominations is evoked and Republicans somehow gain a majority.
     Republican's claims of "court-packing" seem hardly historically and semantically authentic.  During the Roosevelt court-packing plan, the president created additional judgeships to intentionally "pack" the courts.  President Obama is merely acknowledging his constitutional authority to fill vacancies in the federal court system.  Republicans continue to wage a partisan war on Democrats blocking clearly qualified nominees for reasons of low judicial workload and balance tipping.  I must note, Democrats also resisted certain nominees to the courts during the latter portion of George W. Bush's second term.
     Filibuster reform is invertible and should be approached sensibly.  Sensible in Congress these days seems like a far-fetched fantasy long disconnected from the great compromises our nation was founded on.  Legislation and nominations are stalling at unprecedented levels and the 113th Congress is on pace to become the least productive Congress ever.  Cloture voting was only supposed to be used in certain circumstances and is now normal senate proceedings.  While the filibuster protects the minority from tyranny of the majority, it's clear, the minority holds much more power stalling legislation at whim.  The nuclear option on certain votes, not all, is a start but holding it over Republicans heads in this fashion will have dangerous repercussions.  The bottom line is, Reid would not need to invoke this potentially volatile option if the senate worked as it was supposed to.              

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