Constitutional Law, D.C. Circuit, Federal Judges, Judicial Nominations, Politics, R. Ted Cruz, SCOTUS, Supreme Court

And Boom Goes The (Nuclear) Dynamite: Previewing The Derptastic Sound Bytes You’re About To Hear

The other shoe has dropped: Senator Harry Reid went forward with the long-awaited “nuclear option” to end the Republican filibuster of Obama nominees, most notably the nominations of Judge Robert Wilkins, Georgetown Law Professor Nina Pillard, and Akin Gump partner Patricia Millett to three vacant seats on the D.C. Circuit.

By a 52-48 vote, Democrats killed off the filibuster for most of the president’s upcoming nominations, though kindly preserved the minority’s right to filibuster Supreme Court nominees. So they didn’t take away all of our fun.

But you probably already know that. You probably already have a militant opinion about it if social media is to be believed. But as we prepare to welcome three new judges to the D.C. Circuit, our friends, family, politicians, and media people are going to toss around some really hollow sound bytes both for and against this move. Let’s just get some of them out of the way now, so you don’t have to act surprised when you watch Meet the Press on Sunday.

This just means the Republicans will invoke the nuclear option the next time they take over the Senate: Sure, but did anybody think that wasn’t going to happen anyway? This isn’t like breaking the seal at the bar where this event was the only thing holding back a parliamentary procedure free-for-all. Or maybe it’s exactly like breaking the seal when you look at it as “the first time something that was entirely inevitable happens.” Frankly, Republicans have threatened the nuclear option routinely over the years. The fact that Reid equally routinely wussed out is the more relevant reason why the Republicans haven’t employed the nuclear option before. But there is a nugget of truth here. Mitch McConnell had the option of relenting on this and staving off the eminently gullible Harry Reid, who is constantly shocked that McConnell keeps breaking his promises. Republicans could have given in on these three judges and then started filibustering again. By opening the door for Obama to name his chosen nominees to the 93 current judiciary vacancies (and those that will come up over the next few years), McConnell signals his utmost confidence that the GOP will retake the Senate in 2014. Hurray for unskewed polls.

Nominees deserve simple majority (or up-or-down) votes: This one may or may not be accompanied by labeling such a vote a “courtesy” or “respect” thing to add some faux outrage. Simple majorities sound, by design, both “simple” and “democratic.” But this argument is also “simple” as in stupid. Yes, the filibuster allows the minority to derail the legislative whims of the majority. Except this requires ramming your head into a cement wall long enough to forget that the Senate itself is an anti-democratic institution. The people of Wyoming have the same pull in the Senate as the people of California. This may advance a laudable (or archaic) political purpose, but it’s entirely anti-democratic on purpose. The filibuster may disrupt the Senate’s democracy, but in a way designed to protect the actual majority of Americans. Theoretically, Senators representing something like 42 percent of the people could muster 51 votes in the Senate. Hardly democratic. The filibuster lets that real majority protect itself. Now that doesn’t always work — Republicans represent far fewer citizens and were using the filibuster until, oh, a couple hours ago — but by design the filibuster is not anti-democratic, and you need not look back too far to see when it was employed by big state Democratic majorities in exactly this way.

The filibuster is preserved for SCOTUS nominees, so there’s nothing to worry about: Yeah, because no other court matters. Except the immediate triggers for this whole ridiculous affair were D.C. Circuit nominees. That whole “second highest court in the land” place. The “no harm, no foul” quip is utterly disingenuous. Put aside the judges — Reid’s new filibuster rules will let Janet Yellen coast through the Senate and she’s going to basically control the economy. Susan Rice would be the Secretary of State right now. The Supreme Court is important, but I call shenanigans on any Democrat trying to pitch this one.

This move is unconstitutional: Nope. Filibusters aren’t in the Constitution. Equally dumb is calling the nuclear option the “constitutional option” because the founding document doesn’t mandate a simple majority vote either. But all of this sounds better than the “Robert’s Rules of Order Option.”

Obama and Reid are engaged in court-packing: Derp. We’ve covered this before, but here’s the American History 101 breakdown — court-packing was a plan by FDR to create new seats on the Supreme Court in order to tilt the balance of the Court in favor of approving of New Deal policies. This, by contrast, is filling pre-existing seats on the Court. So, not court-packing.

The D.C. Circuit is too big: This is the more nuanced version of the court-packing argument. Basically, this gem concedes that Obama isn’t court-packing by creating new seats, but by exploiting seats that never should have been there in the first place. Senator Grassley backed up this claim with… a bunch of anonymous letters that might, or might not, have been from judges. Pretty compelling stuff. As Lionel Hutz pointed out, conjecture is a kind of evidence. A terrible kind.

Who wants to join in a rousing game of Meet the Press Bingo this weekend?

On second thought, screw that. This is so dumb I’d rather watch Chris Berman that morning.

Senate goes for ‘nuclear option’ [Politico]

Earlier: Senators Call For Shrinking Small, Overworked D.C. Circuit
D.C. Circuit Underworked, Say Anonymous Letters Possibly From Federal Judges

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