The D.C. Circuit continues to be the focus of the Senate battle over judicial nominations. On Monday, Senate Republicans blocked the third of President Obama’s three nominees to fill the remaining D.C. Circuit vacancies, Robert Wilkins. Nominee Cornelia “Nina” Pillard was filibustered on Nov. 12 and Patricia Millett was blocked on Oct. 31.
As tensions mount, Senate Democratic leaders are increasingly open to talking about the “nuclear option” to change Senate filibuster rules. President Obama expressed his frustration with the D.C. Circuit obstruction, saying, “I am deeply disappointed that Senate Republicans have once again refused to do their job and give well-qualified nominees to the federal bench the yes-or-no votes they deserve.” ACS President Caroline Fredrickson concurred, noting, “[t]his endless obstruction is making it more difficult for cases to be heard and justice to be served.”
In other judicial nominations news, the Senate Judiciary Committee voted on Nov. 14 to send four nominees on to the full Senate for a confirmation vote: Carolyn McHugh (10th Cir.), Pamela Reeves (E.D. Tenn.), Vince Chhabria (N.D. Calif.), and James Moody (E. D. Ark.). They join other nominees for a total of 17 nominees pending on the Senate floor.
On Wednesday, October 30, the University of Washington (UW) chapter of the American Constitution Society was proud to welcome Washington State Supreme Court Justice Steve Gonzalez, Ron Ward of the Washington Leadership Institute (WLI) and UW Professor Maureen Howard for an exciting panel discussion on diversity in the judiciary. Joined by a large, diverse group of law students, the panel spoke about the wide-ranging benefits of enhanced diversity among judges in the judicial system.
Justice Gonzalez and Mr. Ward spoke extensively from their own experience about the impact diversity can have in attaining justice. Justice Gonzalez told students about a policy he’d helped initiate while at King County where immigration warrants would not be executed at the King County Courthouse as a way to encourage those at risk of deportation to come to court without fear of retribution. He also told students about his time in the King County Prosecutor’s office, where he teamed up with other minority prosecutors to prevent immigration issues being raised during domestic violence investigations, under the theory that raising those issues would deter both reports of crimes and cooperation with investigations. It was no surprise, he offered, that the few Latino members of the Superior court and prosecutors office started both programs, as each were specifically attune to such a problem given their personal backgrounds.
Gonzalez offered that this was the true advantage of diversity in the judicial system: offering solutions to problems others might not even perceive as problems. Mr. Ward then spoke about his own experiences at the WLI, where he found that often the most qualified candidates admitted into the institute were mired in low-level legal jobs that concealed their true legal skills. Professor Howard agreed, telling a story from her own past about being recruited to be the only woman at a very successful firm, and how that firm’s lack of diversity impacted her decision to work elsewhere. All of our panelists agreed that only by recognizing that the lack of diversity in the legal profession, especially on the bench, and addressing it as a serious issue, as ACS. was doing with this panel discussion, could we hope to bring about true change in the system.
Cornelia Pillard, who has been nominated by President Obama to the U.S. Court of Appeals for the District of Columbia Circuit, has been favorably reported out of the Senate Judiciary Committee. She still, however, awaits a vote by the full Senate on her nomination. The vote should be held promptly, and should be in the affirmative.
I have no personal or professional connection with Pillard (pictured), but I believe it is important for the Senate to confirm qualified nominees for the federal judiciary, and she is one of them.
I have not seen a record of appellate advocacy as impressive as Pillard’s since I worked in the White House Counsel’s Office on the 2006 nomination of John Roberts to become Chief Justice of the United States.
Pillard has worked with a broad range of distinguished appellate lawyers on a wide range of cases, and she knows how courts properly decide cases. Lawyers like Pillard who have in depth experience in appellate advocacy understand the limited role of judges in interpreting and applying the law and know that responsible judges will not assume the role of elected legislators, who make laws. We would significantly diminish the risk of having an activist judiciary if all or most federal appellate judges were to have appellate advocacy experience similar to Pillard’s before they go on the bench. The Senate should not pass up an opportunity to confirm a nominee who has such experience and who will likely impart some of her wisdom and constraint to colleagues on the court.
The U.S. Court of Appeals for the District of Columbia Circuit with three vacancies is a flashpoint for the partisan battle over judicial nominations. Last week, Senate Republicans blocked the confirmation of Patricia Millet to the D.C. Circuit, using misleading rhetoric about the court’s caseload and accusing President Obama of trying to “pack” the court. (The infographic on the right helps clear up the outlandish court-packing rhetoric being peddled by Senate obstructionists and their allies.)
In addition to Millet, nominees Cornelia “Nina” Pillard and Robert Wilkins are pending before the Senate, with a vote on Pillard scheduled for next Tuesday. Senate Republicans have vowed to continue blocking these nominees, and Senate majority leader Harry Reid (D-Nev.) has indicated that he is open to discussing the so-called “nuclear option” of changing filibuster rules if necessary to get nominees through.
In other judicial nominations news, the Senate Judiciary Committee voted on October 31 to send the nominations of Robert Wilkins (D.C. Cir.) and five district court nominations to the full Senate for confirmation votes. They join other nominations for a total of 15 pending on the Senate floor.
On November 7, President Obama announced four new nominees: Robin S. Rosenbaum (11 Cir.), James D. Peterson (W.D. Wis.), Nancy J. Rosenstengel (S.D. Ill.), and Ronnie L. White (E.D. Mo.).There are now a total of 53pending nominees, and 92current vacancies.
The D.C. Circuit is unbalanced. Nine of the D.C. Circuit justices were appointed by Republican presidents, whereas only five were appointed by Democratic presidents. Some observers have misleadingly focused on the fact that of the eight active judges on the court, four were appointed by Democratic presidents and four were appointed by Republican presidents. However, this metric fails to take into account the six senior status judges who play a weighty role in the court’s decision making. Except for participating in en banc hearings, senior status judges are full-fledged members of the judiciary and routinely impact the court’s decisions.
In a recent House Judiciary Committee hearing, Chairman Goodlatte (D-Va.) cited the six senior status judges as doing the work of an estimated 3.25 full-time active judges. Senator Grassley also stressed the senior judges’ relevancy on the court, saying that “it is clear that the senior judges on the court are contributing a significant amount of work, and will continue to do so for the foreseeable future.”
An example of senior judges’ participation in a high-profile case is Gilardi v. U.S. Dept. of Health & Human Services, a challenge to the Affordable Care Act’s contraception mandate, decided on Nov. 1. The case was before a three-judge panel comprised of Judge Brown and two senior judges, Judge Edwards and Judge Randolph. Undoubtedly, senior judges wield significant power and are still active decision-makers on the court. Looking at the Court’s fall calendar, most cases will be heard by a panel that includes at least one senior judge, so not including them when describing the court’s composition is deceptive.