Continuing an uneasy standoff with Republicans on filibusters of President Barack Obama's nominees to the federal courts and to executive branch positions, Senate Majority Leader Harry Reid indicated Tuesday he isn't quite ready to pull the trigger on changing Senate rules to curb or abolish such filibusters.
A move by Reid to change Senate filibuster rules by a simple majority vote – sometimes called the “nuclear option” – would spark a major battle with Senate Republicans.
“I hope that's not necessary,” he said Tuesday when asked if he’ll move to change the Senate’s rules on filibustering nominations.
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Senate Majority Leader Harry Reid (D-NV) speaks to the media on April 9, 2013 in Washington, DC.
Democrats in 2003 and 2004, when George W. Bush was president, and Republicans more recently have used the threat of a prolonged debate or filibuster to delay, and in some cases, block confirmation votes on judicial and executive branch nominees.
Three weeks ago, New York attorney Caitlin Halligan, Obama’s nominee to fill one of the vacancies on the powerful U.S. Court of Appeals for the District of Columbia Circuit, withdrew after the Senate fell nine votes short of the 60 needed to end debate and move to a final confirmation vote.
Reid’s comments came the day before the Senate Judiciary Committee conducts its confirmation hearing on another Obama nominee to the appeals court in Washington, Deputy Solicitor General Sri Srinivasan.
Commenting on the four vacancies on that court, Reid said Tuesday, “We haven’t had a new person on that court since 2006 or 2007. Some say it’s a court more important than the Supreme Court of the United States” – that’s because by statute it handles much of the litigation involving federal regulatory agencies such as the Environmental Protection Agency.
“They’ve blocked new people coming on that court,” Reid said, referring to Senate Republicans. “We’re going to have this young man (Srinivasan). We hope that can be done very quickly. And then we expect in the next couple of weeks – I spoke to the White House this morning – three more nominations.”
He complained that Republican senators were delaying too many nominations, through threats of filibusters and by other means.
Senate Republican Leader Mitch McConnell told reporters Tuesday that Democrats’ complaints about confirmation of judges was unwarranted since Republicans had allowed on Tuesday the confirmation of the tenth judicial nomination of Obama’s second term, and because about 75 percent of the vacancies in the judiciary do not yet have nominees.
According to the Administrative Office of the U.S. Courts, there are now 17 appeals court vacancies and six nominees pending for those spots. For the federal trial courts (district courts) there are 68 vacancies and 17 nominees pending for them.
Progressive groups and labor unions such as the Communications Workers of America have been urging Reid to curtail the filibuster.
The question now is whether Republicans will try to delay a confirmation vote on Srinivasan, once his nomination is reported out by the Judiciary Committee.
And if the GOP does filibuster Srinivasan’s nomination, then would that lead Reid to move to change the rules on filibusters?
Curt Levey, president of the conservative group The Committee for Justice, which is involved in judicial nominations battles, said, “Pending Srinivasan’s confirmation hearing, we tentatively oppose his confirmation for a couple of reasons. One, he has filed amicus briefs opposing voter ID laws and supporting racial preferences in admissions, two issues that are very much in the hands of the federal courts.”
And second, Levey said, Srinivasan was involved in an Obama administration deal with the city of St. Paul, Minn., in which the city dropped its appeal in a Fair Housing Act case in return for the administration declining to intervene in two False Claims Act suits against the city.
Harkening back to the Democratic filibusters of Bush’s judicial nominees, Levey said, “Recall that the four D.C. Circuit vacancies are partly the result of Democrats’ obstruction of tremendously qualified Bush nominees, including Miguel Estrada and Peter Keisler.”
The struggle over filibusters is also playing out in the case of Richard Cordray, Obama’s choice to head the Consumer Financial Protection Bureau.
Until Obama agrees to changes in the CFPB structure to make it a multi-member board akin to other regulatory agencies, Republicans are blocking a confirmation vote on Cordray.
Obama gave Cordray a recess appointment last year to head the CFPB. But the appeals court in Washington held that Obama had acted unconstitutionally by giving a recess appointment to three members of the National Labor Relations Board on Jan. 4, 2012. Obama gave Corday his recess appointment on that same day, which, some Republicans say, puts Cordray’s appointment under a legal cloud.