Republican senators are making an extraordinary argument that the DC Circuit of Appeals, despite having three vacancies, does not need any new judges because their workload is low. Congress determines how many judges each circuit should have, and they have determined that the DC Circuit should have three more judges. President Obama has made those three appointments. Two of the three have already been approved by the Senate Judiciary Committee. But the Republicans are going to filibuster all three of them and prevent the Senate from even having a debate about their qualifications. Their qualifications are not even a small part of the dispute. The individuals who have been nominated are being blocked, not because they are unqualified, but because the Republicans don’t think any judges should be put on the DC Circuit. The president is in the first year of a four year term, and the Republicans plan on blocking these (or any) judges this year, and for the next three years, and for the next 100 years, if it comes to that.
There has been a lot of discussion about, and a good bit of momentum for, doing away with the filibuster for Executive Branch nominations. There has been less support for doing away with the filibuster for judicial nominations because most judgeships are lifetime appointments. But the Republicans’ extreme position on the DC Circuit is forcing the Democrats to consider something that they do not want to do. They cannot accept the precedent that the Senate can deny them the right to appoint judges without any regard for the qualifications of the nominees. They just can’t.
So, if the Democrats don’t go “nuclear” over this issue, they will have caved in on something that they absolutely cannot cave in on. The Republicans are giving them no real choice. It’s a shame and it isn’t a good development, because if the filibuster makes sense for anything, it’s for lifetime appointments.