Time to go nuclear in Congress

Gail Collins

Sunday, Nov. 24, 2013 | 2:01 a.m.

One of the many problems with the Senate filibuster rule is that it requires us to think about the Senate filibuster rule.

The American public has other things to do! The American public is extremely busy! The holidays are coming up, and the American public’s workload is somewhat larger than, say, that of the House of Representatives, which is planning to show up for four full days in December.

So give the American public a break.

The filibuster is, of course, the fascinating Senate tradition that allows a minority of members to stop action on a bill unless the majority can come up with 60 votes. Every once in a while the majority gets fed up with all this stonewalling and threatens to change the rules. This is known as the “nuclear option” because change is worse than atomic war.

“If the Democrats proceed to use this nuclear option in this way, it will be Obamacare II,” cried Sen. Lamar Alexander on Wednesday.

This was in keeping with a new congressional tradition under which Republicans making remarks on the floor of the House or Senate are required to mention the Affordable Care Act at least once every 35 seconds.

Veteran Democrats, who enjoyed throwing rocks into the Senate gears themselves when they were in the minority, have been reluctant to push the button. But now they’re furious over what’s been happening to nominations to the U.S. Court of Appeals for the District of Columbia Circuit. It has three vacancies, and the Republicans have been refusing to allow a vote on the three Obama nominees to fill them. Tempers have flared.

Since the nominees were two women and a black man, Democrats have strongly suggested — well, you know.

“When the other side gets desperate, they turn to their last line of defense: accuse us Republicans of bias,” said Sen. Charles Grassley of Iowa during a brief and rather desultory debate.

Yes, and when the Republicans get desperate, they ... wait for it.

“There is no crisis in the D.C. Circuit because they don’t have enough work to do as it is,” Grassley said. “There is a crisis occurring now all across the country as a result of the health care reform bill that often goes by the terminology of Obamacare.”

Honestly, it’s a wonder they make it through the opening prayer.

Do we think the Republicans are stopping the Obama nominees because one is black and two are women? Let’s be fair. Janice Rogers Brown, a George W. Bush appointee on the D.C. Circuit, is an African-American woman. Brown wrote the recent majority opinion that held that the government couldn’t require employers to include contraceptives in their insurance coverage. Brown once called the New Deal a “socialist revolution.” If President Barack Obama nominated a couple of Janice Rogers Brown clones and threw in a duplicate Clarence Thomas, the Republicans would be over the moon.

The D.C. Circuit hears a lot of cases about federal regulations. The eight judges who are sitting are divided 4-4 between Republican and Democratic appointees, but there are also six senior judges who are working after semiretirement. Five of them are Republican nominees. So the president would naturally like to fill those three vacancies.

The first nominee to come up for a vote, Patricia Millett, was a sort of double dare. She was an assistant solicitor general during the Bush administration. She had argued 32 cases before the Supreme Court. She volunteers at a homeless shelter. Her husband is a Navy veteran. Her husband was once deployed while Millett was arguing a case before the Supreme Court!

The Republicans blocked her nomination, which made it abundantly clear that the next two — Georgetown Law professor Nina Pillard and Robert Wilkins, an African-American district court judge — weren’t going anywhere either.

The Republicans say they’ll never allow any D.C. Circuit nominations to go through because the court doesn’t have enough work for 11 judges and filling the vacancies would cost what Grassley estimates is an additional $1 million per judge.

“We’re looking to make sure every penny goes as far as it can,” said one of the minority leaders, John Cornyn.

You’ve got a lot of arguments to arbitrate, American public. Fortunately, I’ve got the answers.

The Senate should fill the vacancies. Then it can have a nice, reasoned debate about the size of the court when one side doesn’t have a ridiculously obvious partisan reason for wanting it smaller.

Three million dollars is indeed a lot of money. But it’s way less than the $50 million Grassley once tried to get for an indoor rain forest near Des Moines.

And the bottom line is that it’s a good thing to give the minority party some muscle to stop bad or extremist nominees from getting lifetime judicial appointments. But we have crossed the line to crazy when the minority party can announce that the woman who argued 32 cases before the Supreme Court can’t be on the D.C. Circuit because it’s too expensive.

Change the rules.

Gail Collins is a columnist for The New York Times.