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Republicans Set Themselves Up for Judicial Failure Republicans Set Themselves Up for Judicial Failure

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Republicans Set Themselves Up for Judicial Failure

After picking a fight over a court appointee the GOP didn't really oppose, they're stuck watching liberals advance.


(Photo by Mark Wilson/Getty Images)

If you happened to flip on C-SPAN early Friday around 3 a.m – and really, why would you? – you would have seen the United States Senate in full session, debating the nomination of the secretary of the Air Force.

Not that anyone on the Senate floor was actually talking about the secretary of the Air Force, mind you. But that is now how the nominations game is played. The Democrats were keeping Republicans awake in retaliation for the GOP doing the same thing to them the night before, dragging the clock out on every nomination it can just to make Harry Reid feel some pain after stripping the minority's right to filibuster.


Indeed, nearly a month after Reid's so-called "nuclear" strike, the chamber is a raw, angry place.

It didn't have to be. Republicans are caught in a bizarro universe largely of their own making. Had Mitch McConnell shown any willingness to give even an inch on nominations, particularly on the three picks for the federal appeals court in Washington, there would have been no filibuster rule change.

Specifically, Democrats point to the filibuster of Patricia Millett, a moderate who, among other things, worked as a lawyer in the George W. Bush administration. Republicans were candid about their reasons for opposing her, with senators such as Orrin Hatch and Ted Cruz admitting that it had nothing to do with her qualifications to sit on the federal bench. Millett is a partner a nationally prominent (and big business-friendly) law firm who has argued before the Supreme Court more than 30 times.


Every Republican on the Judiciary Committee voted against sending her nomination to the Senate floor, where McConnell decided to block her confirmation. And that gave Reid fresh grist to push ahead with his long-standing threat to do away with the filibuster – and may have convinced some holdouts in his caucus that the time was finally ripe.

"The match they dropped on the gasoline was Millett," says a senior Senate Democratic aide. "People said 'enough is enough. We're not doing this anymore.'"

And now McConnell and his colleagues are in a far worse place on judicial nominees – watching not just moderates like Millett advance but true liberals whose time on the bench might have a tangible effect on policy for decades.

The elements were in place for a nominations deal to avoid the nuclear option similar to one struck in 2005, when it was the GOP threatening to change the rules. In truth, the White House, through President Obama's top counsel, Kathryn Ruemmler, had set up the prospect for such an accord by flooding the zone – nominating three people simultaneously earlier this year to fill the three vacancies on the Court of Appeals for the D.C. Circuit.


While the White House won't concede that one or more of those nominees could have been sacrificed to reach agreement with Senate Republicans, all sides in the fight acknowledge that it could have come to that had GOP senators sought one. Millett, along Mel Watt, the congressman tapped to head the Federal Housing Finance Agency, was the administration's priority.

Why the GOP never struck such a deal remains unclear. A Senate Republican leadership aide says the conference felt like it had already agreed to some compromises over nominees, including reducing the time for floor debate, and that Reid was just looking for an excuse to change the rules. A Republican source on the Judiciary Committee says Reid never attempted to just move Millett's nomination on its own and that he is the one who provoked the confrontation.

But it also might have been another situation of Republicans needing an issue to rally the base after the beating it took following the government shutdown. In October, the minority whip, John Cornyn, pledged to keep all Obama appointments off of the influential D.C. Circuit, which hears appeals from government agencies and where the balance of power between conservatives and liberals has been a Washington parlor game for decades.

Reid's office says that approach was a mistake. "It was not a viable position to expect us to put no one on the D.C. Circuit," says Adam Jentleson, a Reid spokesman.

It was, in fact, a tactical misread. Democrats and Republicans alike believed Reid was rattling the saber to push the parties to the table, but that didn't happen (John McCain made an 11th hour and, some say, half-hearted effort to stave off the nuke.) McConnell and Cornyn gambled that Reid wouldn't do it – and they were wrong.

Now, Millett and Watt have been confirmed by straight majority vote – as was Nina Pillard, another pick for the D.C. Circuit.

She's the one who pains conservatives. A former lawyer for the NAACP Legal Defense Fund and a professor at Georgetown Law Center, she's been called the second coming of Ruth Bader Ginsburg. (A writer at termed her a "radical feminist" with a "disdain for motherhood.")

If the Republicans had concentrated simply on blocking Pillard, rather than taking the fight to Obama's nominees generally, it's possible she could have been horse-traded for Millett, Democrats say. But now both will sit on the D.C Circuit – and likely soon will be joined by Obama's third nominee, Robert Wilkins. That's called not winning.

If Pillard ascends to the high court someday, then conservatives can look back at this time ruefully. Oh, and if you missed her confirmation vote in the Senate, you weren't alone. It took place Thursday – at 1 a.m.

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