Senate Majority Leader Harry Reid intends to work on executive nominations this week, including Richard Griffine to be general counsel to the National Labor Relations Board, as well as at least some of three nominees to the nation's second most important court. You know what that means:
Republicans’ lead argument is that three vacancies on this powerful court should not be filled because the total number of cases heard by the D.C. Circuit is lower than that on several other federal appeals courts. This claim is literally true, but it’s also highly misleading. Unlike most federal courts of appeal, the D.C. Circuit hears an unusually large volume of major regulatory and national security cases—some of which require the judges and their law clerks to review administrative records that literally take up entire rooms. Moreover, it’s worth noting that the Senate GOP’s concerns about underworked D.C. Circuit judges is a recent invention. Currently, there are eight active judges serving on this court. During the Bush Administration, Senate Republicans voted to confirm a total of eleven active judges to the D.C. Circuit. So confirming President Obama’s nominees will only restore the court to the same number of active judges it employed at the height of the Bush Administration.Cornyn says he's ready to fight on the D.C. Circuit, and Sen. Lindsey Graham (R-SC) has promised he's going to fight every potential nominee because Benghazi.
Indeed, in an unusual moment of candor, Senate Minority Whip John Cornyn (R-TX) gave away what is almost certainly the real reason he and his fellow partisans want to keep the court’s seats vacant. In an op-ed published by Fox News, Cornyn attacks a statement by Senator Reid indicating that Obama’s nominees would “switch the majority” on the D.C. Circuit so that the court would be controlled by Democratic nominees. Cornyn would prevent this outcome by refusing to fill the court’s vacancies.
Which means that the filibuster fight is back, and Reid is taking it straight on. For the third time this year the nuclear option—Democrats changing the Senate rules with a simple majority vote to approve nominees—will become a real option. So far Reid's credible threat of going nuclear has been enough to make Republicans back down. On previous executive nominees, though, he had the number of Democrats he needed to move forward. Whether or not he's got the 51 votes he needs on these judicial nominees, though, isn't clear.