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U.S. Opinions: Los Angeles

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To break D.C. logjam, it’s time to go ‘nuclear’

From an editorial Monday in the Los Angeles Times:

As President Obama nominates three new judges for what is probably the nation’s most important federal appeals court, Republicans in the Senate are escalating their attempts to stand in his way.

Last month the Senate unanimously confirmed Deputy Solicitor General Sri Srinivasan for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. But the appearances of harmony in that vote are deceiving. Srinivasan, who also served in the Justice Department in the George W. Bush administration, had bipartisan support and was seen as less ideological than some other Obama nominees.

Some Republicans who supported Srinivasan have essentially said, “This far and no further” when it comes to the D.C. Circuit. Sen. Chuck Grassley, R-Iowa, the ranking Republican on the Senate Judiciary Committee, has accused Obama of trying to “pack” that court and has introduced legislation to abolish the three seats Obama plans to fill and reallocate two of them to supposedly busier regional appeals courts. The Grassley bill is co-sponsored by several senior Republicans.

The accusation that Obama seeks to “pack” the D.C. Circuit is a reference to President Franklin D. Roosevelt’s failed attempt in 1937 to reverse Supreme Court decisions unfavorable to the New Deal by expanding the number of seats on the court. But filling existing vacancies isn’t “packing” the court. If anyone is emulating FDR it’s Grassley: Like Roosevelt, he wants to manipulate the number of seats to shape decision-making.

If Obama nominates three qualified candidates for the remaining vacancies on the D.C. Circuit and Republicans filibuster or drag their feet, pressure will increase on Senate Majority Leader Harry Reid, D-Nev., to revisit the issue of the “nuclear option.” That’s Washington-speak for a parliamentary maneuver in which, by majority vote, the Senate would determine that a filibuster of judicial nominations was unconstitutional. If that occurs, a judge could be confirmed by a simple majority.

Senate Republicans flirted with the nuclear option during the Bush administration, but abandoned it when the so-called Gang of 14 senators reached an agreement that judicial nominees could be filibustered only in “extraordinary circumstances.” That understanding obviously has collapsed. If a similar arrangement is not worked out in this Congress, Reid should revive the nuclear option. Regardless of the party of the president, his nominees are entitled to expeditious up-and-down votes.

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