This is an unprecedented and outrageous abuse of the Senate filibuster. It amounts to a crusade to strip a (twice) duly elected president of a power that all preceding presidents over 200-plus years of history have exercised: the ability to fill existing vacancies on federal appeals courts.
The Republicans’ 2013 obstruction is, therefore, completely out of line. Reluctantly, I conclude that Senate Democrats were justified in ending the judicial filibuster to stop this abuse. Republicans’ case rests on the dubious “underworked” claim, the flatly false “court packing” claim, and false equivalencies in comparing appeals-court caseloads and Democrats’ 2005 actions with Republicans’ 2013 actions.
Fred Slocum is an associate professor of political science at Minnesota State University, where he teaches courses on U.S. government, the presidency, Congress, political parties, and American legal philosophy.
1 Four of the nine current Supreme Court justices previously held seats on the D.C. Circuit Court of Appeals (Justices Scalia, Thomas, Ginsburg and Chief Justice Roberts).
3 http://www.nytimes.com/2013/11/23/us/politics/in-filibuster-shift-focus-on-a-courts-workload-and-political-balance.html (see quotes by Russell Wheeler, Eric Fraser and Tracey George); see also http://www.washingtonpost.com/blogs/fact-checker/post/is-the-dc-circuit-last-in-almost-every-category/2013/06/05/a589b186-ce22-11e2-8f6b-67f40e176f03_blog.html.