WASHINGTON -- Senate Republicans filibustered one of President Barack Obama's top judicial nominees on Thursday, the clearest sign yet that the Senate may be heading for a messy partisan showdown that could result in Democrats revamping Senate filibuster rules.
The Senate voted 55-38 to advance D.C. Circuit Court nominee Patricia Millett. Democrats needed 60 votes to clear a procedural motion, which meant they needed at least five Republicans to join them. In the end, only two did: Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska). Three senators voted "present."
Senate Majority Leader Harry Reid (D-Nev.) vowed to revisit Millett's nomination "at some point in the very near future." He also left the door open to changing the Senate rules.
"I hope my Republican colleagues will reconsider their continued run of unprecedented obstructionism," he said. "Something has to change, and I hope we can make the changes necessary through cooperation.”
The failed vote is a blow to Obama and Democrats, who gave a major push to Millett's campaign this week. Sens. Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.), Chuck Schumer (D-N.Y.) and others held a Tuesday press conference highlighting Millett's background as a Supreme Court appellate lawyer and a military spouse.
Just before the vote, Leahy, the chair of the Senate Judiciary Committee, railed against Republicans for planning to filibuster an "outstanding" nominee like Millett. He warned that Democrats may be forced to take "drastic measures" if Republicans keep obstructing key Obama nominees for political reasons, suggesting that Democrats may change Senate rules to strip Republicans of their power to filibuster certain nominees.
"If the Republican caucus finds that, despite her amazing, stellar legal reputation and commitment to her country, that somehow a filibuster is warranted, I believe this body will need to consider anew whether a rules change should be in order," Leahy fumed.
He specifically called out GOP senators who have argued in the past that a president's nominees shouldn't be filibustered if they don't meet the criteria for "extraordinary circumstances."
"It's not fair," he said. "It's not an extraordinary circumstance. There's no justification for it."
One of those Republicans was Sen. John McCain (R-Ariz.). Not only did he help broker a deal over the summer that narrowly averted filibuster reform, but he said in June about D.C. Circuit nominees that he has "always thought that judges should get votes," regardless of which president nominates them, because "elections have consequences."
On Thursday, however, McCain said before the vote that he planned to filibuster Millett. He cited "extraordinary circumstances," though he did not provide specifics.
Leahy's threats of filibuster reform come after Senate Majority Leader Harry Reid (D-Nev.) previously signaled that he'd be willing to change the rules if Republicans don't let at least one of Obama's D.C. Circuit nominees get a vote.
Vice President Joe Biden, who was in the Senate on Thursday to swear in Sen. Cory Booker (D-N.J.), even lent support to the idea of invoking the so-called nuclear option if Republicans keep blocking Obama's nominees.
Asked by reporters if it might be worth changing the Senate rules so it would only take a simple majority of senators could confirm nominees, versus 60 votes, Biden said, "I think it's worth considering."
Republicans say they don't have problems with the nominees themselves, but just don't think the D.C. Circuit is busy enough to warrant filling its three vacant seats -- a point contested by Democrats both on its merits and on the grounds that the president has a constitutional duty to fill empty seats. Republicans have also falsely been charging Obama with "court-packing" for trying to fill those seats.
Currently, the 11-member court has four Democrat-appointed judges and four Republican-appointed judges, but confirmation of Obama's nominees would tip its balance Democratic. In addition to Millett, Obama has nominated Robert Wilkins and Nina Pillard, both of whom await floor votes.
The D.C. Circuit is considered second only to the Supreme Court in terms of its stature, hence the particularly heated fight over filling its slots.