Judicial Nominations

  • June 7, 2013
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    President Barack Obama engaged in welcome “audacity of hope” when he named three stellar lawyers to the D.C. Circuit, even as his own lawyers were busy taking the court’s Noel Canning ruling to the Supreme Court. Each of his judicial picks -- Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins -- built a sterling record since graduating from Harvard Law. Each is a perfect fit for, and transformative addition to, the nation’s second highest court. 

    Obama accurately describes the court as having a unique national jurisdiction and “final say” responsibility. In a 2006 essay, “What Makes the D.C. Circuit Different,” John Roberts explained: “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”  Supreme Court nominees are often drawn from the D.C. Circuit; indeed, one of the three vacancies that Obama seeks to fill has been empty since Circuit Judge John Roberts rose to the U.S. Supreme Court.

    Having battled unprecedented partisan confirmation obstruction for the entirety of his tenure, PresidentObama also took opportunity at the Rose Garden announcement to make the case against Senate delay and procedural hurdles. He spoke about past nominees -- of both parties -- unfairly worn down by obstructionist delay. Assertive, while not combative, Obama simply asked the Senate minority not to block up-or-down confirmation votes: “What I am doing today is my job. I need the Senate to do its job.”  

    Republicans Jump the Obstructionist Shark; Noel Canning May Backfire 

    Senate Republicans predictably responded by doubling down on obstruction. Absurdly shouting “court packing” and “intimidation,” the Senate minority quickly launched its campaign of obstruction. The D.C. Circuit’s bench status quo is exactly what the GOP wants; the court’s opinion in Noel Canning v. NLRB serves as best evidence.  The radical ruling nullified the independent labor agency’s legal authority and challenged the legitimacy of over 500 intersession recess appointed officials and judges. Unknown-thousands of acts and judgments by recess appointed officials were tainted as ultra vires. As I argued in the National Law Journal, the congressional pro forma scheduling shenanigans of the past years pale in comparison to the D.C. Circuit panel’s interpretive gimmickry. The ruling rejects 150 years of accepted appointment practice and threatens exponential chaos in regulatory law. 

  • June 4, 2013

    by Jeremy Leaming

    President Obama is not shying away from a high-profile nominations battle with the U.S. Senate’s rabid obstructionists. In announcing today three nominations to the powerful U.S. Court of Appeals for the District of Columbia Circuit, the president is taking on senators, such as Chuck Grassley (R-Iowa), who have mounted a concerted effort to block him from bringing balance to the D.C. Circuit, which currently has a strong rightward tilt.

    Grassley, the ranking member of the Senate Judiciary Committee, is arguing that the D.C. Circuit, which hears myriad cases involving weighty constitutional issues, has enough judges and does not need anymore. He is pushing a bill to chop the number of seats on the 11-member Court to eight. The bill has little chance of enactment because it likely could not pass the Senate. But that’s not the point. The point, as Judith Schaeffer of the Constitutional Accountability Center has noted, is to provide cover for Grassley’s partners in obstruction. The obstructionists will have difficulty arguing that the president’s nominees are ideological extremists, but they will take Grassley’s line that the D.C. Circuit has plenty of judges for its caseload.

    But Grassley is pushing an outrageously ludicrous line, one that’s also laden with hypocrisy. Grassley had no problem helping Obama’s predecessor George W. Bush place judges on the D.C. Circuit, which included the far right Judge Janice Rogers Brown.

    Patricia Wald, who served on the D.C. Circuit for 20 years, including five as its chief judge, wrote earlier this year that the Court hears some of the weightiest and time-consuming constitutional and national security cases of any of the federal appeals court circuits. She also noted that the D.C. Circuit’s caseload has grown since G.W. Bush’s administration, when Grassley was striving to confirm nominations to that bench. “The number of pending cases per judge has grown from 119 in 2005 to 188 today,” she wrote.

    In announcing nominations for the D.C. Circuit’s three vacant seats, Obama noted his responsibility in nominating “qualified men and women to serve as judges” and Congress’s responsibility in the matter. Congress has a “constitutional duty to promptly consider judicial nominees for confirmation.” The president nominated Patricia Ann Millett, a longtime appellate attorney, Nina Pillard, a law professor at Georgetown Law Center and Judge Robert Wilkins, who is serving on the U.S. District Court for the District of Columbia. 

    Obama noted that during his first term senators too often failed to provide consideration of his nominees. Indeed, despite what mainstream reporters would have us believe, the battle over judicial nominations has only gotten more pitched during Obama’s presidency. Vacancies on the bench spiked during his first term and have remained hovering around 80 since.

  • June 3, 2013

    by Jeremy Leaming

    ACS President Caroline Fredrickson provided context to the discussion over Senate Republicans’ efforts to scuttle President Obama’s judicial nominations, in particular focusing on the three vacancies on the U.S. Court of Appeals for the District of Columbia.

    During a June 2 segment on MSNBC’s “Melissa Harris-Perry” show, Fredrickson said Americans should understand that a “vast majority” of high-profile and constitutional weighty cases have to be heard by the D.C. Circuit.

    “Major cases involving regulations” of our health care system, environment, and workers’ rights are heard by the Court, as well as major national security cases and voting rights cases. The majority of such cases are “required to go to the D.C. Circuit,” meaning the Court is one of the more powerful in the country, she said. And as noted on this blog frequently Senate Republicans, especially Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa), are bent on keeping the president from making a lasting imprint on the D.C. Circuit. For instance, Grassley is pushing a bill to cut the 11-member court to eight seats thereby preventing Obama from placing any more judges on that court. (Recently the Senate confirmed Obama’s nomination of Sri Srinivasan to a seat on the D.C. Circuit, after twice blocking the president’s initial nomination to the Court.)

    Fredrickson noted that when George W. Bush was president Grassley had no complaints about the number of seats on the D.C. Circuit, instead strongly supporting the president’s constitutional duty to fill vacancies on the federal bench. Fredrickson noted that Grassley and other Republicans “fought like hell to get George Bush’s nominees on the D.C. Circuit when the caseload was not only lower, but they wanted to go right up to the 11th seat and now they say eight is plenty.”

    Fredrickson and the other panelists, including the Alliance for Justice’s Nan Aron, also touched upon discussion in the Senate to alter the filibuster to make it more transparent and a bit more difficult for the obstructionists to abuse. Part of the reason for renewed interest in reforming the filibuster is that Senate Republicans are showing no signs of making it any easier for the president to fill judicial vacancies and some executive branch vacancies.

    See the entire segment below or visit this link.

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  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.

  • May 28, 2013

    by Jeremy Leaming

    Some beltway pundits have long-pleaded with the Obama administration to “flood-the zone,” Washington-speak – in this instance – for making a lot more nominations all at once to the federal bench.

    These pundits may have a bit to celebrate if President Obama puts forth three nominations to vacant seats on the 11-member U.S. Court of Appeals for the District of Columbia Circuit, as The New York Times reports may happen soon. That Court noted here often, is one of the more powerful among the appeals circuit courts, in part, because of the myriad and weighty constitutional concerns it rules on, many of which center on federal regulations. As The Times and many others have pointed out the D.C. Circuit has tilted rightward, thanks in part to the fact that an overwhelming majority of its senior judges are Republican-appointees. The Times noted the D.C. Circuit “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”

    The Times reports that the potential nominees -- the White House would not comment on nominations not yet made – include three “experienced lawyers who would be unlikely to generate controversy individually.”

    But Sen. Minority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) despite their protestations to the contrary have worked to stall or scuttle too many of the president’s judicial and executive branch nominations. The D.C. Circuit, at the moment is a business friendly outfit, recently issuing an opinion undermining the workers’ rights, is especially important to both leaders. Last month as Senate Judiciary Committee was conducting its hearing on Sri Srinivasan, the only Obama nominee to be confirmed the Court (finally), Grassley introduced a bill that would eliminate three judgeships on the D.C. Circuit and transfer them to the other circuit courts. In part Grassley argued that the D.C. Circuit’s caseload is light and other circuits need the judgeships more. Grassley’s effort has been blasted by the Constitutional Accountability Center’s Judith E. Schaeffer as a “ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

    The right-wing editorialists at The Wall Street Journal lauded Grassley’s effort saying President Obama, upset with the D.C. Circuit’s rulings, was aiming to “pack” the Court with judges to alter its ideological make-up.

    Russell Wheeler, an expert on federal courts, disagreed in an ACSblog post, citing a 1996 speech by the late Chief Justice William Rehnquist in which he noted the right of presidents to place their imprints on the judiciary. Rehnquist, Wheeler wrote, said, “When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, and subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of federal judges.”