Senate Republicans say that the cosmic order may soon be torn asunder. In response to the GOP’s recent filibustering of two Obama nominees — particularly, that of Patricia Ann Millett to the U.S. Court of Appeals for the District of Columbia Circuit — Democrats have threatened to diminish the power of a minority of senators to block confirmations by changing the filibuster rules. Republicans counter that this would, in the words of Sen. John McCain, R-Ariz., “destroy the very fabric of the United States Senate.”
Yet in keeping Millett’s nomination from coming to a vote, Republicans were destroying the very fabric of something a good deal more fundamental than the Senate’s filibuster rule. For the benefit of those who nodded off during civics class: The right to filibuster is not mentioned in the Constitution or in any law. It is a creation of the Senate’s rules and one that has been used to thwart the very essence of democracy — majority rule. By contrast, the right of presidents to appoint judges and the Senate to confirm them are laid out in Articles I and II of the Constitution, which Republicans profess to revere.
There are, of course, all kinds of reasons to filibuster a nomination. In the case of Millett, however, Republicans have insisted that they have nothing against her — that, in fact, she is highly qualified. Millett, who served from 1996 to 2007 in the solicitor general’s office under both Presidents Bill Clinton and George W. Bush, has argued 32 cases before the Supreme Court. She is widely regarded as one of the nation’s leading attorneys. Her nomination has been endorsed by conservative former solicitors general Ted Olson, Kenneth Starr and Paul Clement. Even Sen. Ted Cruz, R-Texas, praised her when she came before the Judiciary Committee in July.
The Republicans’ problem isn’t with the nominee but rather the nominator — a president with the unmitigated gall to fill judicial vacancies. The D.C. Circuit, to which President Obama has nominated Millett, currently has four judges appointed by Democratic presidents, four appointed by Republicans and three vacancies. By sending Millett’s nomination to the Senate, said Cruz, Obama seeks to “pack the court.”
The most famous, or infamous, example of attempted court-packing was that of Franklin Roosevelt. In 1937, after an elderly Supreme Court had issued a number of rulings that struck down early New Deal legislation, Roosevelt proposed that Congress allow the president to appoint an additional justice for every sitting justice older than 70. Polling showed that the public didn’t go for FDR’s proposal, and the Senate rejected it handily. Nonetheless, the high court heard the president’s message and began to uphold New Deal legislation, including such landmark measures as the Social Security Act and the laws establishing the minimum wage and workers’ rights to join a union.
What the country and the Senate objected to wasn’t changing the number of justices — which Congress had set at five in 1801 and eventually expanded to nine — but the manipulation of the number of justices for political purposes. Which is precisely what Senate Republicans are doing by trying to keep Millett and two other Obama nominees from filling the vacancies on the D.C. Circuit.
Noting that the court is equally divided between judges appointed by Democrats and by Republicans, Sen. Charles Grassley, R-Iowa, argued, “There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven.” Grassley neglected to note that the court also relies on six senior judges to break ties and render decisions — and that five of the six were appointed by Republican presidents. The sole reason not to “upset the current makeup of the court” is to preserve its conservative majority.
So who is the court-packer here? Congress decreed that the D.C appellate court should have 11 judges. Republicans are filibustering a nominee that they acknowledge is eminently qualified because they want to keep the number of judges at eight for purely political reasons. It is Republicans, not Democrats, who are effectively resetting the number of judges to preserve the court’s ideological profile.
Yet they’re not passing a law to reduce the court’s size: They don’t have the votes to do that, and when they did, under Bush, a Republican, they introduced no such legislation. Instead, they’re using the filibuster to block Obama’s right to appoint judges and the Senate’s right to confirm them. As such, they’re forcing the Senate to choose between its anti-majoritarian rules and the Constitution’s stipulation of presidential and congressional powers.
If that’s not a good reason to scrap the filibuster — and there are many others — I don’t know what is.
Harold Meyerson is editor-at-large of The American Prospect.