In 2005, Senate Republicans and Democrats averted a collision over the future of the filibuster. They agreed that the procedural tactic would be limited to “extraordinary circumstances” when weighing judicial nominations. Now leap forward to last week, Republicans applying the filibuster to the nomination of Patricia Ann Millett for the federal court of appeals in Washington, D.C. What were the “extraordinary circumstances” that justified blocking her path to confirmation?
There aren’t any such circumstances. What is extraordinary are her qualifications for the judgeship. No woman has argued more cases before the Supreme Court. Millett worked as a deputy solicitor general in the Clinton and Bush the younger administrations. She is one of the leading appellate attorneys in the country, handling cases across a wide range of causes, ideas and perspectives.
Even Republicans have praised her temperament and preparation. Thus, they have strained to make an argument for standing in her way.
Mitch McConnell, the Senate minority leader, has accused President Obama and his Democratic allies of seeking to control the court and advance an agenda. And Republicans are not trying to maintain their leverage on a bench split evenly, with four Republican and four Democratic appointees? (Of those judges serving on senior status, five are viewed as conservatives and one as liberal.)
Of late, Republicans have contended that the workload of the court doesn’t merit filling the three vacancies. They made no such complaint when they occupied the White House and the court’s workload largely was the same.
No question, the political stakes are high, this appeals court viewed as second in importance to the U.S. Supreme Court, cases involving such things as presidential authority and campaign finance more often landing there. True, too, is that Democrats have played similar games. Yet, as this editorial page long has argued, during Republican and Democratic presidencies, there is a process that deserves respect, starting with the concept that elections have consequences.
A president especially deserves leeway in Cabinet and other agency appointments. A federal judge receives a lifetime appointment, inviting closer scrutiny. Yet it hardly comes as a surprise that Democratic presidents lean left and their Republican counterparts lean right, through the give and take of elections, the federal bench reflecting the national will of voters. Only in truly “extraordinary circumstances,” involving temperament, perspective or personal failing, should a nomination be blocked. Those circumstances do not exist for Patricia Ann Millett or other judicial nominees in the Senate pipeline awaiting confirmation.
Following the government shutdown, not to mention an understanding last summer about discretion in using the filibuster, the hope was, a measure of comity would prevail. Instead, the question hovers: What good is the filibuster, anyway?