The White House Rose Garden is rarely a scene of insurrection. But this morning the president used the setting for phase one of a strategy that could end with Senate Democrats exercising the "nuclear option" to reset rules around the use of the filibuster. Simply by saying three names.
The plan goes something like this. At the event (details below), Obama nominated three judges to fill three vacancies on an appeals court serving Washington, D.C. (The D.C. Circuit, as it's known, has broad power to review federal regulations, making it an extremely powerful bench — and one from which four sitting Supreme Court Justices have come.) The Constitution mandates that the Senate vote on those nominees, which under normal circumstances would likely mean that they'd be approved. After all, 54 Democrats and Democrat-friendly independents is a larger number than 45 Republicans.
But these are not normal circumstances. Obama has nominated people to fill those three vacancies before, only to see the nominations blocked by a Republican filibuster. In the current Senate, a nominee needs 60 votes — enough to end any filibuster and be approved. With the Democrats losing a senator yesterday, reaching that number just became harder.
Now that Obama has nominated three people at once, Senate Majority Leader Harry Reid can bring them before the whole Senate simultaneously. The hope is that, by doing so, the Republicans would be less able to justify filibusters for all three, given that it's meant to be a tool employed in rare circumstances. If the Republicans do filibuster them all, the Senate could decide to revamp established rules — which isn't subject to filibuster — making it so that certain nominees need only a majority of votes to be approved. This is known, melodramatically, as the "nuclear option," given that it upends the protocol to which the Senate ostensibly adheres.
- Patricia Ann Millett. Millett served as an assistant to the Solicitor General under Presidents Clinton and George W. Bush. Prior to that, she worked in the Department of Justice's Civil Division. She currently works for the D.C. Law firm Akin Gump, where she leads the appellate practice. She's argued 32 cases before the Supreme Court. (Source.)
- Cornelia T. L. Pillard. Pillard, now a professor at Georgetown University, also worked for the Solicitor General under President Clinton, eventually becoming an Assistant Attorney General. Prior to entering government service, she worked for the NAACP Legal Defense Fund as assistant counsel. Pillard has argued eight cases before the Supreme Court. (Source.)
- Robert L. Wilkins. Wilkins has served on the D.C. District Court since 2010. Prior to that, he served in the public defender's office in the District of Columbia. Wilkins, who is black, was also party to a landmark civil rights case, following a Maryland traffic stop in which he and family members were pulled over for no reason other than race. (Source.)
If the Senate were to approve all three nominees, the balance of the D.C. Circuit would shift. Right now, four Democratic appointees and four Republican appointees sit on what is widely believed to be the nation's second most influential court. Filling the three vacancies would make the balance seven-to-four — although there is a senior bench with six judges who hear some cases, five of whom were Republican appointees.
Republicans have a counter to the President's plan: eliminate the three vacancies or, at least, move some to other Appeals benches. It's an equally transparent push to manipulate the balance of power on the court — but one that faces a steep climb in a Senate still controlled by Democrats.
With the death of Senator Lautenberg, however, even the "nuclear option" plan looks tentative. Meaning that one likely result of the Rose Garden insurrection may be a filibuster of some or all of today's nominees. As after so many revolutions before, we could just end up back in the status quo.
Update, 10:40 a.m.: As expected, Obama introduced his three nominees. Perhaps unexpectedly, he did so while directly noting the Senate's inaction.
"Time and again," he said, "Congressional Republicans cynically used rules and procedures to delay and block" his nominations. The president noted that the tactic wasn't new, but that his nominees had been waiting three times longer than those of his predecessor.
He drew specific attention to the nomination of Caitlin Halligan. "If she had gotten a simple up or down vote before the full Senate, I feel confident she would have been confirmed." She wasn't; the Senate twice filibustered her nomination until she withdrew from contention. "It had nothing to do with Caitlin's qualifications," Obama said. "It had everything to do with politics."
His harshest critique was directed at the proposal to reduce the number of seats on the bench. Eleven judges worked fine for Republican presidents, he pointed out, but "now that a Democrat is president ... eight is apparently enough."
The nominations are in. It seems that the insurrection has begun.
Photo: The president introduces, from left, Wilkins, Pillard, and Millett. (AP)