Remaking the Courts: Dems Weigh Going Nuclear After Nominee Stopped

As another of President Obama’s nominees to the powerful D.C. Circuit federal appeals court is blocked, Senate Democrats are seriously talking about invoking the “nuclear option.”

Barack Obama has recently admitted his plan of “remaking the courts.” Since there are no Supreme Court vacancies to fill, Obama has focused his firepower on tilting to the left the U.S. Court of Appeals for the District of Columbia Circuit, which has jurisdiction to hear appeals over the actions and regulations of most federal agencies, such as the Justice Department, IRS, HHS, and EPA.

It was just last week that the U.S. Senate voted against advancing Obama’s second nominee to fill one of three seats left vacant on that court by years of Democratic filibusters of George W. Bush’s nominees, which Obama participated in during his brief tenure as a senator. It takes 60 votes to invoke what is called cloture to end debate on the Senate.

On Nov. 18, the Senate voted 53-38 against invoking cloture on the nomination of Robert Wilkins to the D.C. Circuit. He is currently a federal trial judge on the U.S. District Court for the D.C. District.

Republicans repeated their assertion that Senate Democrats blocked Bush’s nominees by citing statistics that the D.C. Circuit caseload doesn’t require more judges (though eleven judgeships are authorized by federal law, and the court currently has eight judges). Thus they insisted that these judicial seats should be moved to other federal appeals courts that are the most overloaded.

Senate Majority Leader Harry Reid (D-NV) rejects that position, saying these nominees are being blocked for “blatantly political reasons.” Reid himself, however, has previously stated that he was seeking to shift the balance of the D.C. Circuit to a more liberal outlook, which presumably would look more favorably on Obama’s agenda. Reid also led the filibuster of Bush’s nominees during Bush’s second term.

Sources tell Breitbart News that after all three of Obama’s latest nominees have been blocked (Republicans previously confirmed an earlier nominee, Srikanth Srinivasan) that Democratic senators are increasingly talking about unilaterally declaring a permanent rules change to the Senate that judicial nominees cannot be filibustered, and can go straight to a final vote where a 51 votes is enough to confirm a nominee.

This is called the “nuclear option,” as it would undo many years of Senate practice, fundamentally changing the way that body conducts its business. If Senate Democrats pursue this course, they would try building public support for it in the coming weeks.

One top Republican operative said off the record that this would be a manufactured crisis, spurred by Democrats’ desperate desire to avoid discussing Obamacare.

Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.