Reid lacks the votes to go nuclear (VIDEO)

Greg Nash
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Senate Majority Leader Harry Reid (D-Nev.) is short of the 50 votes he would need to advance President Obama’s stalled judicial nominees via the “nuclear option,” according to sources who have advocated for filibuster reform.

Reid is feeling pressure from labor unions and liberal advocacy groups to consider changing Senate rules after Republicans filibustered two of President Obama’s nominees to the D.C. Circuit Court of Appeals, the nation’s second most powerful court. 

Senate Republicans blocked Patricia Millett, an accomplished appellate litigator, on Oct. 31, and held up Cornelia Pillard, a Georgetown law professor, on Tuesday. Democrats expect Republicans to filibuster Robert Wilkins, a third nominee to the court, in the near future. 

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“If we can’t move ahead based on how the procedures have been perverted, we need to fix the procedures. That’s the deal,” said Larry Cohen, president of Communications Workers of America, which is leading a coalition lobbying for changes to filibuster rules.

Cohen said Reid “is willing” to change the rules but “the question is whether the leader can get 50 Democrats, not 49 or 48, to sustain that motion.”

A senior Democratic aide said Reid has not conducted a recent whip count and questioned how outside groups or rank-and-file Democratic senators would know the vote count if the leader attempted a rule change immediately.

"Any declarative statements at this point are extremely premature," said the senior aide.

The fight over the court picks has major ramifications for the rest of President Obama’s term.

The court handles most of the legal challenges to federal agencies, putting it at the center of fights over regulations — including the healthcare reform law and Obama’s push to regulate greenhouse gas emissions from power plants.

The 11-seat court is now evenly split, with four active judges who were nominated by Republican presidents and four who were put forward by Democrats. 

Senate Republicans say Obama is trying to “pack the court” with judges who will uphold his agenda.

“President Obama and Senate Democrats are attempting to transform the D.C. Circuit into a rubber stamp for liberalism and big government,” Sen. John Cornyn (R-Texas) wrote in a National Review op-ed last month.

Liberals, however, say Obama is simply trying to exercise the authority granted to him under the Constitution.

“At this point the Senate really needs to be looking at its rules,” said Michelle Schwartz, director of Justice Programs at the Alliance for Justice. “If the president cannot fulfill his constitutional duty to fill these vacancies, then we really need to question whether the Senate is able to function because of the rules.”

Groups pushing Reid to “go nuclear” over the nominations have one thing working in their favor.

For the first time, Reid has the strong backing of Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who had been leery about weakening the power to filibuster judicial nominees. 

“I’m glad that I’m not the only one out talking about this,” Reid said last week when asked about the possibility of rules reform. “We have someone who [has] never, ever been upfront on rules changes — that’s Sen. Leahy, who said he’s really disturbed about what’s going on.”

Leahy’s support might help Reid persuade wavering colleagues to strip Republicans of the power to filibuster judicial picks.

“He has the backing of Sen. Leahy, which is huge for this. That’s a really important step,” said a Senate Democratic aide. 

Reid came close to triggering the so-called nuclear option in July after Republicans held up Obama’s picks to executive branch agencies such as the Consumer Financial Protection Bureau, the Environmental Protection Agency and the National Labor Relations Board. He backed off the threat after Republicans allowed the nominees to go through. 

Using a controversial ruling of the chair to take away the minority party’s power to filibuster judicial nominees, however, is of a higher gravity because they are lifetime appointments. 

While Reid had backing from his caucus to change filibuster rules for executive branch nominees, he doesn’t have enough support for lowering the threshold for judicial picks, according to sources familiar with the caucus. 

One argument for changing the rules is that confirming several judges to the powerful appellate court could rank as one of the biggest legacies of Obama’s second term.

“Every president wants as their legacy to have as many people appointed to the federal appellate courts as possible,” said Nancy Zirkin, executive vice president and director of policy at the Leadership Conference on Civil and Human Rights. 

Republicans say the influential court does not need additional judges because it has a light workload. 

Senate Republican Leader Mitch McConnell (Ky.) on Tuesday called the court “so underworked that it regularly cancels oral argument days,” and said if any more judges were confirmed “there wouldn’t be enough work to go around.” 

Democrats made a similar argument in 2006 when they denied Peter Keisler, then-President George W. Bush’s nominee to the D.C. Circuit, an up-or-down vote. 

“[W]e believe that Mr. Keisler should under no circumstances be considered — much less confirmed — by this committee before we first address the very need for that judgeship, receive and review necessary information about the nominee and deal with the genuine judicial emergencies identified by the Judicial Conference,” Democratic members of the Judiciary Committee wrote in a letter dated July 27, 2006, to then-Chairman Arlen Specter (R-Pa.). 

Cohen, the head of the CWA, now says Democrats were wrong to use that argument. 

“I would say it was a spurious argument in 2007,” he said. “It’s not OK to make up some storyline, whether it’s Democrats in 2007 or Republicans today, about caseload. “

Citing statistics from the Administrative Office of the U.S. Courts, Republicans say the caseloads in the D.C. Circuit have “decreased markedly” in recent years. 

They say the court has the lowest number of total appeals filed annually among all the circuit courts of appeal, with a 13.5 percent decrease in filings since 2005. 

Advocates for putting more judges on the court argue that Republicans are using misleading numbers. 

“Just the raw number of filings doesn’t tell you much about the complexity of the cases,” said Paul Gordon, senior legislative counsel at People for the American Way. 

He said the court deals with many highly complex cases from administrative agencies that consume uncounted hours of time. 

“A much, much higher percentage of these cases are these really complex cases from the administrative agencies that have very complicated issues and multiple parties,” he said.