Nov 13, 2013 4 min read

There once was a time when a president of the United States could have a reasonable expectation that the vast majority of his appointments to federal court vacancies would be approved by the Senate, and be considered without excessive delay.

That is no longer the case. The “modern era” of partisan showdowns over judicial nominations essentially began when Democrats derailed President Reagan’s nomination of Robert Bork to the Supreme Court, and it has grown progressively worse over the years.

In 2006, following repeated filibusters of President George W. Bush’s court nominees, then-Senate Majority Leader Bill Frist threatened to impose the “nuclear option” of doing away with the Senate rule requiring 60 votes to end debate on a nominee or piece of legislation, replacing it with a requirement of a simple majority. A group of 14 senators, seven from each party, came to an agreement that averted such action.

If anything, the problem has gotten worse during the Obama administration, particularly since the president won re-election last year. Several times this year, current Majority Leader Harry Reid, a Nevada Democrat, has raised the “nuclear option” threat. Each time, a deal was brokered to resolve a nominations standoff.

But sometimes, enough is enough, and a current dispute over President Obama’s nominations to the one of the country’s top courts, the U.S. Court of Appeals for the District of Columbia Circuit, has some leading Democrats saying that the time to invoke the option has come.

After Republicans on Tuesday succeeded in preventing a vote on the president’s nomination of Georgetown University law professor Cornelia Pillard to one of three vacancies on that bench, Democratic Sen. Charles Shumer of New York said, “Republicans are inching closer and closer to that line.”

Democratic Sen. Patrick Leahy of Vermont, who chairs the Judiciary Committee and has been in the Senate for nearly 40 years, has long opposed changing the filibuster rules, but even he has had enough. Leahy said throwing up roadblocks for purely political reasons to block appointments “destroys the integrity of the federal judiciary.”

Republicans’ motivation is clear, and it’s clearly political. As an Associated Press story noted, the District of Columbia court is important because “it rules on administration orders and regulations and because some of its judges ultimately become Supreme Court justices.”

Currently, there are four Republicans and four Democrats on that court. The GOP obviously fears that allowing the president to place even one of his nominees on that panel will shift the balance of power in a way that is not in its favor.

Senate Minority Leader Mitch McConnell of Kentucky said the decision to seek a vote now on Pillard’s nomination was “a political exercise designed to distract the American people from the mess that is Obamacare.”

It’s precisely that kind of brainless partisanship that leads us to believe the time has come to “nuke” the existing Senate rules and allow a simple majority vote to fill the nation’s court vacancies. For now, that would allow President Obama to presumably stock the federal courts with his picks, but a few years from now, that advantage might well be in the hands of a Republican president. Either way, a president should expect that, barring extreme circumstances, his choices for judgeships should not be routinely waylaid by political gamesmanship.

About the same time that the Senate vote was taken on the Pillard nomination, Gallup came out with a new poll showing that the nation’s opinion of Congress has reached its lowest level ever, and that a record 63 percent of voters surveyed want to see their own member of Congress replaced.

Is it any wonder?