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The Times has an interesting report exploring how the Democrats in the Senate came around to detonate the nuclear option, and eliminate the filibuster. What was the turning point? Decisions from the 5th and D.C. Circuits about abortion.

Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.

“These are the kinds of decisions we are going to have to live with,” a blunt Senator Harry Reid, the Democratic majority leader, warned his caucus later as it weighed whether to make historic changes to Senate rules. Those changes would break a Republicanfilibuster of President Obama’s nominees and end the minority party’s ability to block a president’s choices to executive branch posts and federal courts except the Supreme Court.

The moment represented a turning point in what had been, until then, a cautious approach by Democrats to push back against Republicans who were preventing the White House from appointing liberal judges. All the more glaring, Democrats believed, was that they had allowed confirmation of the conservative judges now ruling in the abortion cases. Republicans were blocking any more appointments to the court of appeals in Washington, which issued the contraception decision.

Faced with the possibility that they might never be able to seat judges that they hoped would act as a counterweight to more conservative appointees confirmed when George W. Bush was president, all but three of the 55 members of the Senate Democratic caucus sided with Mr. Reid. The decision represented a recognition by Democrats that they had to risk a backlash in the Senate to head off what they saw as a far greater long-term threat to their priorities in the form of a judiciary tilted to the right.

Of course none of had to do with an overworked the D.C. Circuit. It was always about the ideology of the federal judiciary. And that is exactly what Harry Reid said this summer:

“We put on three people — I don’t think they deserve to be on any court, but they — we put them on there, and they have been terrible,” Reid said. “They’re the ones that said … the president can’t have recess appointments which we’ve had since this country started. They’ve done a lot of bad things, so we’re focusing very intently on the D.C. Circuit. We need at least one more. There’s three vacancies, we need at least one more and that will switch the majority.”

We’ll see how effective this effort is to fill the vacancies, now that the filibuster is gone, and potentially, the Senate will remain in Democratic control for another year or so.

It is interesting how the proximity of these two abortion decisions triggered the nuke, and that two of the judges who voted “against” abortion were appointed in 2005 by the Democrats: Janice Rogers Brown and Priscilla Owen:

Very quickly and unexpectedly, abortion and contraceptive rights became the decisive factor in the filibuster fight. First there were the two coincidentally timed decisions out of Texas and Washington. Then momentum to change the rules reached a critical mass when Senator Barbara Boxer, Democrat of California and a defender of abortion rights, decided to put aside her misgivings, in large part because the recent court action was so alarming to her, Democrats said.

Mr. Reid and many members of his caucus found it especially disquieting that in 2005 they agreed to confirm the two judges who wrote the recent decisions — Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit andPriscilla R. Owen of the United States Court of Appeals for the Fifth Circuit — as part of a deal with Senate Republicans, who controlled the chamber at the time and were threatening to limit Democrats’ ability to filibuster judges if some of Mr. Bush’s nominees were not approved.

Aww, and this was such a sad jab at Ginsburg and Breyer.

Conservatives have always viewed the federal courts as a last line of defense in the country’s cultural and political fights. Among their base it is a central tenet that electing Republican presidents is vital precisely because they appoint right-leaning judges who will keep perceived liberal overreach in check.

The issue has never been as powerful for liberals. Consider, for example, how often Republican candidates laud Supreme Court justices like Antonin Scalia and Clarence Thomas compared with how relatively rarely Democrats mention liberal justices like Ruth Bader Ginsburg.

I laud you all the time RBG.

On October 1st, shortly after the launch of HealthCare.gov, a common talking point was that the Affordable Care Act was only suffering downtime because so many people were accessing it at once, and it was not able to handle the capacity.

I remember listening to the Diane Rehm show that day, and a caller called in, and actually blamed conservative groups for flooding the web site with traffic, with the intent of making it break. In hindsight, we know that HealthCare.gov crashed under its own weight, and not because of massive popularity.

But, the caller does raise an interesting issue. With the self-imposed deadline of December 1 rapidly approaching, I thought there are many conservative groups who are invested in the site not working. And, I can speculated that sites may try to flood Healthcare.gov with traffic, trying to get a Denial of Service attack.

So I googled Denial of Service attack. And what’s the fourth hit? Denial of Service Attack Healthcare.gov.

So apparently, others had this idea.HealthCare.gov has been targeted 16 times by cyber attacks. But this number was viewed as relatively low.

“The fact there was only 16 is surprising. Maybe those 16 are the documented ones,” he said of healthcare.gov. “Due to the fact there are consumers punching in personal identifying info, that makes it a very attractive target.”

During her testimony today, Stempfley said at least one of the attempts involved a Distributed Denial of Service (DDoS) attack, in which a hacker tries to flood a website with junk inquiries until it overloads and crashes the servers.

Stempfley said the DDoS attack did not succeed. However, she did not elaborate on the hacking techniques used in the other documented attempts and what, if any, damage was done.

I suspect HHS will be on red-alert for DOS attacks on Sunday. As it stands, the White House is “still urging people not to flood the website right away.”

Today, both Charlie Savage at the New York Times and Jeff Toobin at the New Yorker wrote about how the blue slip may become a tool of the GOP to stop nominations now that the filibuster is gone.

I follow this stuff pretty closely, and haven’t seen much of anything about the blue slip before today. A quick search shows two hits yesterday from Mother Jones and Media Matters. I found a few other mentions of the blue slip on other news sites, but not much.

I’m not sure if these articles are serving as a pre-emptive CYA for the inability of the President to appoint liberal dreamboats to the federal judiciary, or a preemptive attack on the GOP for using their last arrow in the quiver to stop nominations.

In any event, I always find it convenient for many outlets on the same side of the aisle to circle and focus on a single topic in a very short span. Maybe one day I’ll get the memos that go out.

 

Physicians for Reproductive Health has filed a brief on behalf of a number of doctors, contending that Plan B and other-FDA approved contraceptives are not in fact abortifacients. Therefore, Hobby Lobby’s religious exemptions do not apply to these products, because they do not affect the fertilization of the egg. They write:

As demonstrated herein, the weight of the scientific evidence establishes that the FDA-approved contraceptives and emergency contraceptive are not abortifacients. It is respectfully urged that the Court grant a writ of certiorari in this significant case and that any formulation of the issues for review accurately reflect the scientific record and maintain the proper distinction between a contraceptive and an abortifacient.

I didn’t realize that Justice O’Connor’s childhood home, the Lazy B Ranch, actually straddled the border between New Mexico and Arizona. She was in interstate commerce. This explains so much about her federalism views!