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After Filibuster Changes, D.C. Circuit Nominee Vote Redux

By Brett Snider, Esq. on December 09, 2013 | Last updated on March 21, 2019

With the "nuclear option" engaged and filibuster rules amended, Senate Democrats have begun the second phase of the plan: voting on the three Obama nominees to the D.C. Circuit.

On Tuesday, the Senate took that step by confirming Patricia Millett to the D.C. Circuit bench, the first of the three nominees to the Court to be pushed aside by Republican filibuster in late October and November, reports the Los Angeles Times.

Will the new filibuster rules allow Pillard and Wilkins to join the D.C. Circuit bench as well?

New Rules Require Majority, Not Super Majority

Things were not looking especially rosy for Millett's nomination to the D.C. Circuit Court of Appeals after a scary Halloween filibuster blocked the Senate from voting on her nomination. In that case, as with Pillard and Wilkins' later nomination votes, the Senate Democrats attempted to override the filibuster with a cloture vote, which required three-fifths of the Senate to agree to end debate and vote on the nominee.

They couldn't get those votes, and in each nominee's hearing before the full Senate, Republicans succeeded in blocking the Senate from actually voting on the nominees.

This was enough for Senate Democrats to amend the rules on filibustering -- the so-called "nuclear option" -- to allow the Senate to end debate/filibuster on nominees with a simple majority (i.e., more than 50% of the votes). Filibuster reform may have significant consequences on both parties' abilities to affect policy. But in the short term, the change means the Democrat-controlled Senate can override Republican stalling on these nominees.

But Will The Nominees Get the Votes?

It may have seemed like deju-vu, but the Senate voted again on Millett's confirmation, and this time she only needed 51 votes to pass through the eye of the confirmation needle. She was confirmed by a 56-38 vote, tracking very closely to her last confirmation vote before the full Senate in late October of 55-38, reports the Times.

The same may be true for Nina Pillard and Robert Wilkins, who garnered 56 and 53 votes respectively in their last foray with the full Senate, so things are looking up for the Obama nominees.

However, Senate Republicans are not out of options. According to The Washington Post, Republican Senators have the option to withhold a "blue slip," a colored slip of paper submitted by Senators from a nominee's home state that can potentially sink a nomination.

Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) has verified that he would honor the "blue slip" tradition unless Republicans "abuse" the arcane rule, reports the Post.

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