WASHINGTON -- The third and final of President Barack Obama's nominees to the U.S. Court of Appeals for the D.C. Circuit passed the Senate Judiciary Committee on Thursday, bringing the Senate that much closer to a partisan blowout over whether any of those nominees will get a floor vote.
The committee voted 10-8, along party lines, to confirm Robert Wilkins, whose nomination now heads to the Senate floor where fellow D.C. Circuit nominees Patricia Millett and Nina Pillard are awaiting votes. The Senate will hold a procedural vote on Millett's nomination later Thursday, a vote that Republicans are lining up to filibuster.
Republicans insist that while they don't have any problems with the nominees themselves, they 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 courts. Currently, the 11-member court has four Democrat-appointed judges and four Republican-appointed judges, meaning it's not coincidental that confirmation of Obama's nominees would tip the court's balance Democratic. Republicans have also falsely been charging Obama with "court-packing" for trying to fill those empty seats.
These same arguments played out during Wilkins' Judiciary committee vote on Thursday.
"The court doesn't need more judges at this time," said Sen. Orrin Hatch (R-Utah).
Sen. Chuck Grassley (R-Iowa), the ranking member on the committee, said the D.C. Circuit's caseload has declined steadily since 2005. There were a total of 1,379 appeals filed in the court in 2005, he said, compared to 1,193 last year.
But Sen. Patrick Leahy (D-Vt.), the chairman of the committee, pointed out that the court has a higher level of pending appeals today than in 2005, and said the GOP argument about the court's low caseload "unfortunately ... has less to do with caseload than who is president." He noted that under President George W. Bush, Democrats made no objections to confirm John Roberts to that court, when its workload had been "reduced to the slowest level in 20 years." Roberts, of course, went on to become Bush's nominee for chief justice of the Supreme Court.
While it's not new that Republicans would try to block Obama's judicial nominees, the stakes are high for the D.C. Circuit Court, the second-most powerful court in the nation. It has broad power to review federal regulations relating to air and water rules, nuclear plant safety, insider trading and, most notably, Obamacare.
Sen. Mark Kirk (R-Ill.) conceded to HuffPost that that's what the fight is really about.
"We're worried about that court being a significant bastion for administrative law cases on Obamacare," Kirk said.
Now that Wilkins has cleared the committee, the fireworks will really begin. Senate Majority Leader Harry Reid (D-Nev.) has already threatened to invoke the so-called "nuclear option," if Republicans don't let at least one of Obama's D.C. Circuit nominees get a vote. And Leahy said this week that the pressure to go nuclear -- that is, to change Senate rules and strip Republicans of their power to filibuster certain judicial nominees -- would be "almost insurmountable" if Republicans block Millett's confirmation vote on Thursday.
It's unclear whether any Republicans are prepared to vote with Democrats to advance to the vote on Millett. It takes 60 votes to clear the "cloture" motion ahead of the confirmation vote, which means Democrats need at least five Republicans to join with them.
"I think there's budding support," said Sen. Chuck Schumer (D-N.Y.). But when asked if he thought the votes were there, he walked away, saying only, "I don't know."