Majority Leader Harry Reid's claim that Supreme Court nominees are excluded from today's controversial Senate rules change is a distinction without a difference, judicial conservatives said.
"I don't see how Reid can abolish the filibuster vis a vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee," Ed Whelan writes in the National Review.
Doug Kendall, of the progressive Constitutional Accountability Center, admits as much in a statement: "To be sure, with the tea party as crazy as it is, it is understandable to have some trepidation about what this rule change could mean in the future."
Sen. Charles Grassley, R-Iowa, said in a floor speech, "Our side will nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees."
Whelan notes that this whole debate started with the Democrats. Back in 2003 the Democrats were first to use the filibuster against Miguel Estrada, who at the time was a nominee for the DC Circuit Court of Appeals. Estrada was widely viewed as a potential nominee for the Supreme Court. He is now a lawyer at Gibson Dunn.
Carrie Severino, who heads the conservative Judicial Crisis Network, says it is fine with her if Reid uses the so-called "nuclear option" and notes that "Republicans should welcome the chance to put more Scalias and Thomases on the bench when they are in the White House."
Today's debate was prompted by the president's nomination of three judges on the DC Circuit. It's considered the second most important court in the land as its jurisdiction is federal agencies, including executive decisions made by the Obama administration. It is also a breeding ground for potential Supreme Court nominees. Four current Justices-Chief Justice John Roberts, and Justices Scalia, Ginsburg and Thomas all served there.
In nominating Patricia Millett, Nina Pillard and Robert Wilkins, to the court in June President Obama said, "The judges on the D.C. Circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy; from questions of campaign finance to workers' rights. In other words, the court's decisions impact almost every aspect of our lives."
There are currently four judges nominated by Democrats and four by conservatives and three vacancies. There are six judges who are retired but hear cases and five of those are considered conservative.
But Republicans argue that the court's caseload does not require 11 full time judges.