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.

WASHINGTON, DC - JUNE 04: U.S. President Barack Obama speaks while nominating Cornelia T. L. Pillard (2nd-L), a law professor, Patricia Ann Millett (R), an appellate lawyer, and Robert L. Wilkins (L), to become federal judges, during an event in the Rose Garden of the White House June 4, 2013 in Washington, DC. If confirmed by the U.S. Senate the three nominees will fill three vacancies on United States Court of Appeals for the District of Columbia. 
National Journal
James Oliphant
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James Oliphant
Dec. 16, 2013, midnight

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 bri­et­bart.com 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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