Nuclear Option Clears Path for African American Judge Robert L. Wilkins, And Two Women


Judge Wilkins

Even before President Barack Obama entered the White House, Rush Limbaugh, a conservative radio personality, hoped the President would fail. Like clockwork, conservatives in Congress have blocked the President at nearly every turn. Frustrated, Senator Harry Reid (D-NV) has chosen a “Nuclear Option.”

This is not an actual war involving weapons of mass destruction. However, it is a war-like power struggle with collateral damage. Their weapon is obstruction. African-Americans and women are among those blocked from getting judgeships and government jobs by Tea Party conservatives, a vocal minority within the Republican Party, intent on making Rush Limbaugh’s wish come true.

These “obstructiveness tactics are causing the nominations of highly qualified” African-American candidates to be blocked, said Hillary Shelton, Washington Bureau Director of the NAACP. Those blocked nominees include Robert L. Wilkins, a Federal District Court judge in Washington, whom the President nominated to the Court of Appeals for the District of Columbia and Congressman Melvin Watt (D-NC) who was nominated to lead the Federal Housing Finance Agency.

Born in Indiana, Robert Wilkins, a Harvard graduate, is known for his early stand against racial profiling, or Driving While Black, in Maryland. His successful lawsuit, Wilkins v. Maryland State Police, stems from an unlawful stop and search of his car by police there. His case led to national changes in law enforcement.

Republicans have not criticized the qualifications of Wilkins or Watt. But, conservative Senators are using the filibuster to obstruct their progress. Once, it was rare for a politician to take over the floor of Congress and block, or filibuster, all business. After President Obama’s election, it became routine for Republicans to filibuster a vote on Democratic legislation and nominations to fill his positions in government.

A Congressional vote is required when the President nominates a person for a high government office. Congress was given this authority in Article II, Section 2, of the U.S. Constitution. The President must seek the advice and consent of Congress.

Republican conservatives in the House and Senate are staging a ground war, strategically blocking a vote on Democratic legislation and Presidential nominations. This guerrilla war-fare has stalled the Federal government.  No vote. No progress. The President appears to fail.

Who is responsible? Without a vote, there are no names recorded.  People back home don’t know whom to blame for an ineffective government. However, the President’s approval rating falls while his immigration reform is blocked from a vote in the House and his nominations are filibustered in the Senate. 

“The Republican Caucus has turned “advise and consent” into “deny and obstruct,” said Senate Majority Leader Harry Reid. “In addition to filibustering a nominee for Secretary of Defense for the first time in history, Senate Republicans also blocked a sitting member of Congress from an Administration position for the first time since 1843,” said Reid. Without the ability to call a vote, the government languishes.

Then, Senator Reid chose the “Nuclear Option.” He changed the rules in a Senate deeply rooted in tradition. Republicans call it a power grab. But, Reid said he had little choice. “Only 23 district court nominees [for judge] have been filibustered in the entire history of this country,” said Reid. “Twenty of them were nominated by President Obama.”

Conservative Republicans who have done everything from shouting liar during President Obama’s State of the Union Address to shutting down the Federal government claim changing Senate rules to limit the use of filibusters is unfair.

Since Federal judges sit for life this war within Congress is a power struggle with far reaching consequences. A seat on the D.C. Court of Appeals places Robert Wilkins within a hairsbreadth of reaching the U.S. Supreme Court. A position on any Court of Appeals is significant. But, the D.C. Circuit court is known as the second most powerful court in the nation, after the Supreme Court.

In 1961, President John F. Kennedy nominated civil rights attorney Thurgood Marshall to a position on the 2nd Circuit Court of Appeals. His nomination was blocked by conservative Senators in the South. Yet, Judge Marshall would eventually take his place on that court before becoming the first Black justice of the U.S. Supreme Court in 1967.

Although this 113th Congress wasted an unprecedented amount of time on partisan obstruction, Senator Reid’s “Nuclear Option” has made it possible for highly qualified candidates like Judge Robert Wilkins to receive justice in Congress. 

It was one hard fought battle in a political war that is far from over.


Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College, in New York City, is a legal correspondent covering the U.S. Supreme Court, the United Nations, and major legal issues. She is author of “Race, Law, and American Society: 1607 to Present.”  Twitter: @GBrowneMarshall


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