On November 21, the Senate voted to change the rules on filibusters for judicial nominations to require 50, not 60, votes for cloture on a nominee. This so-called “nuclear option” was a controversial move, yet ultimately necessary to stop Senate obstructionists from effectively shutting down the judiciary with filibusters of President Obama’s nominees.
Following the rules change vote, Senate Majority Leader Harry Reid (D-Nev.) made a motion to reconsider the cloture vote on Patricia Millet for the D.C. Circuit, which was previously blocked. The vote on her confirmation is expected to be held when the Senate returns to session on December 9. It is anticipated that reconsideration of Federal Housing Finance Agency nominee Rep. Mel Watts (D-N.C.), as well as D.C. Circuit nominees Cornelia “Nina” Pillard and Richard Wilkins, will soon follow.
ACS President Caroline Fredrickson explained: “With obstructionists in the Senate bent on shutting down the judiciary, something had to give…Our judicial system is hamstrung and a rules change was necessary to ensure it gets back up and running.” Leading up to the rules change, Fredrickson discussed the importance of confirming judicial nominees on PBS’s NewsHour and MSNBC’s The Cycle.
Without the filibuster, the hope is that judicial nominations and confirmations will speed up when the Senate returns after the holidays. This depends, however, on the blue slip process, which some observers predict will be the obstructionist tactic of choice without the filibuster. Under current Senate Judiciary Committee rules, Senators must sign off on judicial nominees for judgeships in their state, known as “returning a nominee’s blue slip,” before the Committee can hold a hearing on a nominee.
Today the Senate took a historic step to change the filibuster rules for judicial nominees so that they only require 50 votes, and not 60, for confirmation. Referred to as the “nuclear option,” this rules change is a bold move by Senate leaders, and one forced upon them by obstructionist senators striving to block President Obama’s nominees. Quoting ACS President Caroline Fredrickson, “something had to give.”
Over the course of the past month these obstructionists have halted all three of President Obama’s candidates to fill the three vacant seats on the D.C. Circuit Court. There are no credible doubts about these nominees’ qualifications. Instead, some senators tried to argue that the D.C. Circuit’s caseload doesn’t necessitate filling these vacancies, even though the Judicial Conference, headed by Chief Justice John Roberts, recommended maintaining the 11 seats on the D.C. Circuit.
The real reason for the blockade lies in the importance of the D.C. Circuit and some senators’ desire to maintain its conservative tilt. Of the eight active judges on the court, four judges were nominated by a Republican and four were nominated by a Democrat. However, there are six senior judges, five of whom were appointed by a Republican. These senior judges routinely hear cases and participate in court decisions, so their importance should not be underestimated. Often described as the second-most important court in the country, second only to the Supreme Court, the D.C. Circuit hears many complex and regulatory cases that involve the federal government. Senate Majority Leader Harry Reid explained, “It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee... And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.” With the official government shutdown over, certain lawmakers embarked on an effort to shut down the judiciary instead.
There are 93 current vacancies in the federal judiciary and 38 judicial emergencies throughout the country. This leaves over 10 percent of the federal judicial system vacant, hindering people’s access to the courts in a timely manner. Facing this dire reality, Senate leaders reformed the filibuster rules to ensure that President Obama’s nominees get a fair vote and are not held hostage to a partisan agenda. The change was a necessary step to stem the judicial vacancies crisis from becoming an even larger emergency in the future, and to get the confirmation process back on track.
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.