Senate Democrats revealed their primary motivation for changing the filibuster rules today when they confirmed Obama nominee Patricia Millett to the U.S. Court of Appeals for the District of Columbia on a 56-38 vote:
Senators voted 56-38 to approve Washington lawyer Patricia Millett to join the U.S. Court of Appeals for the District of Columbia, the nation’s second most powerful court.
Both sides saw Millett’s appointment as pivotal. It will give Democratic-appointed judges a 5-4 majority over those chosen by Republican presidents for that court, which rules on the legality of White House actions and federal agency regulations.
That last part is the important part: the DC Court of Appeals has jurisdiction over regulatory and executive matters. The last few years have shown us that blurring the lines on exactly what constitutes regulatory and executive authority has been a key tool of the Obama Administration.
Remember the controversial measure not to enforce DOMA? The legality of that maneuver would be up to the D.C. Court of Appeals. Same goes for his executive order on the DREAM Act, and his ability to unilaterally “delay” the Obamacare employer mandate. If Obama wanted to issue an executive order that would be a workaround way to raise the minimum wage without going to Congress, that would also fall to the D.C. Court of Appeals.
That’s an incredibly important judicial seat now being controlled by Democrats. Now, it might be the case that Patricia Millett will be a fair and down-the-middle type of judge, but that’s an unlikely outcome in the Obama era. The partisan transformation of the judiciary that began with Democrats’ demonization of Robert Bork has continued apace, and it’s unlikely now that there will be many justices who vote against the person who nominated them.
This is the main reason why Democrats changed the nominating rules: to give President Obama an advantage on “executive orders” that are legislative workarounds so that he doesn’t actually have to compromise on anything.