Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 7, 2016

Leahy Eyes ‘Nuclear Option’ Threat to Confirm Judges

(Douglas Graham/CQ Roll Call File Photo)

(Douglas Graham/CQ Roll Call File Photo)

A senior Senate Democrat is eyeing the “nuclear option” to eliminate filibusters of nominations — this time for circuit court judges.

Senate Judiciary Chairman Patrick J. Leahy says Democrats should bring back the idea of changing the rules with a simple majority if Republicans block nominees to a federal appeals court.

“I think that the rules change will come back on the table if it’s filibustered because it is one thing if you had somebody who is not qualified. These people are extraordinarily well-qualified,” the Vermont Democrat said of three nominees pending to the D.C. Circuit Court of Appeals in an interview that will air Sunday on C-SPAN’s “Newsmakers.”

Majority Leader Harry Reid, D-Nev., said last month that his plan to change the Senate’s procedures with a simple majority vote (the “nuclear option”) would have applied only to executive branch nominees, not judges. Reid ultimately struck a deal with Arizona Sen. John McCain and other Republicans to avoid that outcome.

It’s not clear that Reid would have had the votes to push through a simple majority rule for judges, although the No. 3 Senate Democrat, Charles E. Schumer of New York, suggested the possibility of a rules change to fill the D.C. Circuit Court of Appeals in March.

The D.C. Circuit, considered by many to be the most significant federal court outside the Supreme Court, is no stranger to the judicial wars. It’s the same court to which President George W. Bush nominated Miguel Estrada, for instance.

Sen. Ted Cruz, R-Texas, referred to the Estrada blockade during a July 10 hearing on President Barack Obama’s nomination of Patricia Ann Millett to the D.C. Circuit.

Republicans, led by Leahy’s GOP counterpart Charles E. Grassley of Iowa, contend that the court is simply not busy enough to need the three judges, citing statistics on the number of cases filed.

“Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved by the court, respectively. That is how you determine how busy a court is,” Grassley said July 10.

However, Democrats note that the D.C. Circuit handles a lot of particularly complex material and tends to have a lot of cases that remain pending for a long time.

“They’re saying, well you know the caseload is down. Baloney! Caseload is a lot higher than it was during the Bush tenure when they said they needed new judges,” Leahy said. “This is an extraordinarily important court. A lot of the things that go through the administrative parts of our government go there, and they can do … more to thwart the will of the president or the Congress than anybody else because most cases never get to the Supreme Court.”

Leahy, in response to questioning from CQ Roll Call’s John Gramlich on “Newsmakers,” said that he believed Republicans “do not want a balanced court” at the D.C. Circuit.

“I’m not asking for a Republican or Democratic court, I want one that’s balanced,” Leahy said. “It is not balanced now, and they are trying to keep it unbalanced.”

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