Senators enter into ‘post-nuclear’ world

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The Senate will step into the “post-nuclear” world on Tuesday with a vote to approve one of President Obama’s nominees to a powerful appellate court.

It will be the first nomination vote in the upper chamber since Senate Majority Leader Harry Reid’s (D-Nev.) controversial decision last month to trigger the “nuclear option” and curb the minority’s filibuster powers. 

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Republicans warned the move would cause a “meltdown” in relations and have threatened to bog down the Senate with procedural roadblocks in retaliation.

But the GOP isn’t expected to put up much of a fight on Tuesday, when lawmakers are expected to approve a lifetime appointment for Patricia Millett on the U.S. Court of Appeals for the D.C. Circuit.

Obama has described Millett as “one of our nation’s finest appellate attorneys,” but Republicans had previously blocked her nomination to prevent what they worried would be a permanent realignment of the court in favor of liberal ideas.

The D.C. Circuit is often considered the second most powerful bench in the country because it has jurisdiction over most federal agencies.  

“The stakes of the cases in front of the D.C. circuit really are incomparable to any other court other than the Supreme Court because the federal government’s here, so the government gets sued a huge amount here, and also appeals from agencies frequently arise,” Thomas Goldstein, a partner at the Goldstein and Russell law firm and co-founder of SCOTUSblog, told The Hill. 

“So any significant regulatory program of any president is likely to end up in front of the D.C. Circuit.”

Since May, when the Senate confirmed Sri Srinivasan to the bench, the D.C. Circuit has had four judges nominated by Republican presidents and four by Democrats. 

That fragile balance would be upset if Obama’s nominees were to be confirmed. Republicans fear the new judges would serve as a rubber stamp for the current administration’s regulatory agenda.

Supporters of the nominees are quick to note that that 4-4 balance does not include the six senior judges who help with the court’s workload and have written consequential opinions. Five of those senior judges were nominated by Republican presidents. 

John Elwood, a partner with the Vinson and Elkins law firm’s appellate practice group, described Millett as a “pretty mainstream candidate.”

“I do think that, in the run of cases, that she will decide cases a lot like a careful judge appointed by George W. Bush. But I think it will definitely make some difference at the margins, or at least make some difference in certain high-profile cases,” he said.

In addition to Millett, the president has nominated Nina Pillard, a law professor at Georgetown University, and Robert Wilkins, a judge on the U.S. District Court for the District of Columbia, to the powerful bench.

The vote for Millett’s confirmation was originally scheduled to occur on Monday evening but was pushed back to Tuesday due to travel delays from winter weather.

On Monday, Reid said that the Senate needed to consider “a large number of nominations” before the end of the year. His office did not clarify the chamber’s timeframe for voting on the other judges. 

None of the three nominees are likely to be “crusaders on the court,” predicted Jonathan Hacker, the head of O’Melveny and Myers’s Supreme Court and appellate practice group.

“I don’t expect any sort of major shift in the way the D.C. circuit does its work,” he said. 

Opponents of the decision to change the Senate’s filibuster rules warned that it could come back to hurt Democrats when the balance of power in the chamber changes.

Sen. Carl Levin (D-Mich.) supports the three nominees but was one of just three Democrats to vote against using the “nuclear option.” He said in November that it would set a precedent that “will be used to change the rules on consideration of legislation, and down the road, the hard-won protections and benefits for our people’s health and welfare will be less secure.”

Ramsey Cox contributed.