Nominations Battle Heats Up with Obama’s Three D.C. Circuit Selections

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.

“Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor. Let me repeat that: My nominees have taken three times longer to receive confirmation votes than those of my Republican predecessor. These individuals that I nominate are qualified. When they were finally given an up or down vote in the Senate, every one of them was confirmed. So this is not about principled opposition. This is about political obstruction.”

As noted on this blog, Republican obstructionists are especially keen on keeping the D.C. Circuit as it currently stands with four Republican appointees and four Democratic appointees and a group of senior judges dominated by Republican appointees. That set-up provides a strong chance that the Court’s three-judge panels will more often than not be controlled by Republican appointees. The D.C. Circuit as it stands now has proven hostile to regulations intended to protect the environment and workers’ rights. It’s essentially a pro-business court and that’s just the way Senate Republicans like it.

During his announcement in the Rose Garden, Obama blasted the efforts to block more nominations to the court as “obviously a blatant political move.”

He continued, “We know that because some of the same Republicans behind this current proposal to reduce the number of seats on the D.C. Circuit Court voted in 2007 to keep 11 judges on the D.C. Circuit – same folks. They say the workload has decreased since then, but in April, the judicial conference of the United States – which, by the way, is led by Chief Justice John Roberts and includes judges from various levels of the federal court system – told the Senate that the current workload before the D.C. Circuit requires 11 judges. So they should know. That was just two months ago.”

The Leadership Conference on Civil and Human Rights issued a statement signed by 18 national organizations, including ACS, calling for the Senate to stop its delaying tactics and promptly consider the nominations.

[image by Kristine Kippins]