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.
Along a party-line vote, the Senate Judiciary Committee today approved the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit. The nomination must still be considered by the entire Senate.
Ranking Member Sen. Chuck Grassley (R-Iowa) voted against the nomination, again noting his wobbly claim that the 11-member D.C. Circuit, one of the most powerful appellate courts in the land, does not need the vacancies filled. Grassley has been pushing a bill that aims to cut seats from the D.C. Circuit, effectively leaving its right-wing tilt in place.
Senate Judiciary Chairman Patrick Leahy (D-Vt.) lauded today’s vote, saying “Pillard’s character and qualifications are unassailable.” A press release from Leahy’s office also noted that Pillard, a professor of law at Georgetown University, has argued “nine cases before the Supreme Court as well as drafted the government’s successful argument in the landmark Supreme Court case, United States v. Virginia, which opened the doors to the Virginia Military Institute for female cadets.”
Despite efforts by some right-wing pundits to distort Pillard’s legal work and career, she has received support of Republicans, former law enforcement and military officials, conservatives, and many leading members of the Supreme Court bar from both parties.
Several public interest groups lauded today’s Senate Committee action and called for a swift floor-vote of Pillard’s nomination.
National Women’s Law Center (NWLC) Co-President Marcia Greenberger, noted that Pillard’s “impressive legal career includes two tours in the U.S. Department of Justice and 15 years teaching at the Georgetown University Law Center. In addition, she currently brings her legal acumen and expertise to her role as Co-Director of Georgetown’s Supreme Court Institute, which prepares lawyers for oral argument before the Supreme Court on a pro bono basis. She is a legal superstar who would bring extraordinary skills to the Court, including her deep background on legal protections for women.”
There are more than 90 vacancies on the federal bench and for most of President Obama’s time in office vacancies have hovered near 80. Today the president announced 8 more judicial nominations, including Diane J. Humetawa to the U.S. District Court for the District of Arizona. If confirmed, Humetawa would become the first Native American female judge in the nation’s history.
Judge Patricia Wald, the first woman appointed to the U.S. Court of Appeals for the District of Columbia Circuit, will be awarded the Medal of Freedom by President Obama later this year.
Wald, a former ACS Board member, is among 16 recipients the White House announced today. Of Wald, the president said:
Patricia Wald is one of the most respected appellate judges of her generation. After graduating as 1 of only 11 women in her Yale University Law School class, she became the first woman appointed to the United States Circuit Court of Appeals for the District of Columbia, and served as Chief Judge from 1986-1991. She later served on the International Criminal Tribunal in The Hague. Ms. Wald currently serves on the Privacy and Civil Liberties Oversight Board.
Wald retired from the bench in 1999, but as Obama noted hardly became idle. She was also honored in 2008 by Legal Times “as a ‘Visionary’ for breaking through barriers during a long career in law,” its blog notes.
This year Wald has been instrumental in pushing back against Senate Republicans led by Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) who have sought to prevent the president from filling vacancies on the D.C. Circuit, considered one of the most powerful federal appeals court circuits because of myriad cases it hears regarding constitutional concerns and challenges to federal regulation. Grassley has introduced a bill that would remove three judgeships from the 11-member D.C. Circuit under the guise that its caseload is not as burdensome as others.
Many, such as the Constitutional Accountability Center’s Judith Schaeffer, have noted the obviously political effort to keep a Democratic president from shaping the make-up of the D.C. Circuit, which currently has a distinctly conservative bent. In a recent post for CAC’s Text & History blog, Schaeffer provides plenty of documentation undermining Grassley’s argument that judgeships should be yanked from the D.C. Circuit. She notes that an April letter to the Judiciary Committee from the Judicial Conference of the United States providing assessments of staffing needs of the federal bench did not “contain any recommendation to eliminate or not fill seats on the D.C. Circuit.”
Even after reaching a deal to move along some executive branch nominations, a gaggle of Republican senators is showing how far it is from giving up on obstructing President Obama’s nominations for long-standing vacancies on the federal bench.
Yesterday’s Senate Judiciary Committee hearing to consider the nomination of Cornelia “Nina” Pillard to one of the three vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit, has drawn quick attention from reporters, scholars and activists for some of the accusations lobbed at Pillard, a professor at Georgetown University Law Center with a varied and deep legal career. (And Sen. Charles Grassley (R-Iowa) kept insisting the D.C. Circuit, which hears some of the most complex and time-consuming legal matters of all the appeals court circuits doesn’t need any more judges. But Patricia M. Wald, who served for 20 years on the D.C. Circuit, five of them as its chief judge, provides reality here.)
But Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas) tried mightily to paint Pillard as unfit to serve on the federal bench. Pillard (pictured) has a widely respected legal career, including varied scholarship, and extensive work as an attorney for the federal government, including the Solicitor General and the Office of Legal Counsel; for mainstream boards seeking to provide services to multinational corporations, such as the American Arbitration Association, and for the long-respected civil rights group, the NAACP Legal Defense and Educational Fund. But in their questions Lee and Cruz seemed to misstate or misrepresent what Pillard had said in writings and briefs she had authored years before.
Pillard has not only taught law, she’s practiced law representing the federal government and individuals seeking to enforce Congress's civil rights laws. But Lee and Cruz during the Senate committee hearing labored to create a far different picture. Specifically they focused on a short symposium article she wrote more than a decade ago that sought common ground on the divisive issue of reproductive choice, and an amicus brief she wrote in support of lower court decisions that had held Operation Rescue accountable for physically blocking women's access to family planning facilities.
But Lee and Cruz seemed either to misunderstand or misrepresent Pillard's own words. For example, Cruz claimed that Pillard had once written that abstinence-only education was constitutionally suspect. She did not and tried to explain it to the senator. Pillard pointed out that her article merely argued that such programs should not be bound by stereotypes. Instead she explained that abstinence-only education should be taught without promulgating stereotypes. Moreover that article was intended for policymakers offering ways to bridge a gap between anti-abortion activists and women’s rights advocates by identifying initiatives both sides could agree upon that would reduce the incidence of abortion.
Cruz and Lee continued their misrepresentation of Pillard's legal work, claiming that in an amicus or friend-of-the-court brief that she equated anti-abortion activists to violent white supremacists, like the KKK. Again, the senators either did not read the brief or they shamelessly took parts of it out of context to tar Pillard. In reality Pillard argued that a civil rights law was aimed at private groups that interfered with or ‘hindered’ the police’s ability to protect people’s rights, no matter who the private groups were. In no way could the brief be read to say that a moral equivalency exists between anti-abortion activists and violent groups like the KKK.
Pillard in fact has a stellar record reflecting moderate views, and has received the support of Republicans, former law enforcement and military officials, conservatives, and many leading members of the Supreme Court bar from both parties.
Sen. Judiciary Chairman Patrick Leahy (D-Vt.) noted that Pillard “has had a distinguished career as a practitioner, as an academic … she’s argued nine cases before the Supreme Court … spent her legal career in public service … and for the past 13 years, she’s worked as a professor of my alma mater, Georgetown University Law Center.”
As AEI’s Norman Ornstein predicted last week at a Common Cause event on the escalating use of the filibuster to scuttle consideration of legislation and nominations, senators crafted a deal to avoid a slight change to rules governing the filibuster.
TPM’s Sahil Kapur reports that the deal means that nominees to the National Labor Relations Board (NLRB), Consumer Financial Protection Bureau (CFPB), the Environmental Protection Agency, the Labor Department and the Export-Import Bank would get up-or-down votes in the Senate. Also Sharon Block and Richard Griffin, appointed to the NLRB via recess appointments and then re-nominated by President Obama would have to be replaced with new nominees, but with a written promise that the new nominees would be confirmed before the end of August. Following the deal the Senate voted to begin debate on the nomination of Richard Cordray to head the CFPB. Cordray’s (pictured) was recess-appointed to the position by President Obama because of Republican opposition to the agency created by financial overhaul legislation.
Yesterday during an event at the Center for American Progress, Senate Majority Leader Harry Reid (D-Nev.) said that the only way for Senate Republicans to avoid a vote to slightly change the rules surrounding the filibuster would be to stop blocking consideration of the president’s executive branch nominees. Regarding today’s deal he said, “I think we see a way forward that will be good for everybody,” The New York Timesreports.
Common Cause, which last year lodged a lawsuit challenging the constitutionality of the filibuster, said the deal should be the start of further action on the filibuster.
“A vote on these nominees should be just the starting point for rules changes that would break the Senate’s gridlock permanently,” said Common Cause Staff Counsel Stephen Spaulding. “Senate rules should guarantee a prompt review in committee and confirmation by a simple majority vote for ALL future presidential nominees.”
In a recent guest post for ACSblog, former ethics attorney for President George W. Bush also urged action on the filibuster, saying the “situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown they actually enjoy it.”
Regarding judicial nominations, which were not on the table in the discussions that lead to today’s deal, there are more than 80 federal court vacancies, 32 of them considered judicial emergencies. The high vacancy rate has plagued the majority of Obama’s time in office. As noted here Republicans led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) are threatening to scuttle or greatly stall President Obama’s nominations to fill the three vacant seats on the powerful U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit hears myriad constitutional concerns, including many challenges to government regulations intended to enforce environmental laws. For more about vacancies on the federal bench, see JudicialNominations.org.