Senate Republicans Ratchet Up Fight to Block Obama Nominees to D.C. Circuit

July 10, 2013

by Jeremy Leaming

Because of the heighted partisanship that has engulfed the U.S. Senate, President Obama has had great difficulty filling vacant seats on the federal bench and within the executive branch, even with nominees that the Republican Party would typically embrace. Case in point is the nomination of a Patricia Millett, an accomplished appellate court attorney who has argued more than 30 cases before the U.S. Supreme Court, to fill one of three vacant seats on the powerful U.S. Court of Appeals for the District of Columbia Circuit. As Think Progress’ Ian Millhiser notes Millett also raked in more than “a million dollars last year representing wealthy clients at the elite law firm of Akin Gump Strauss Hauer & Field,” and has defended the pro-business Supreme Court as actually impartial on corporate interests that have come before it.

But Millett and the other nominees to the D.C. Circuit are on a difficult path to confirmation, largely because of Republican’s desire to continue wreaking havoc on President Obama’s agenda, regardless of how moderate it is.

July 10, the Senate Judiciary Committee opened the battle with a hearing on Millett’s nomination, which showcased a bit about her qualifications, but even more about Republicans’ political machinations.  

The hearing, as Legal Times’ Todd Ruger put it had little to do with Millett’s qualifications to serve on the federal bench. “The fight about her nomination” to the D.C. Circuit “isn’t about her.” Instead Ruger noted Millett spent most of her time “listening to Republicans explain the political rationale behind why they will fight against her confirmation.”

During questioning from Sen. Charles Schumer (D-N.Y.), however, Millett had some opportunity to talk about her judicial philosophy – she said she was unsure she had one – and her religious belief, she’s described herself, Schumer noted, as a “Christian lawyer.” Millett said her religious faith “is the biggest part of who I am and I’m proud of that.” She continued, “But our Constitution is a very precious system of justice” that instructs “judges to decide cases not on personal views, not on background, not on personal beliefs, but based on the rule of law. That’s what every client I have ever had wants. That’s what the system demands and I would never betray that incredibly precious system by injecting personal beliefs into decision-making.”

But the political arguments against Millett and the other D.C. Circuit nominees, as Ruger and many others pointed out, took prominence at the hearing. Senate Judiciary Ranking Member Chuck Grassley (R-Iowa) in his opening statement defended his arguments about the allegedly weak caseload of the D.C. Circuit, before turning his attention to Millett.

Grassley has led the charge with a bill that would slash three judgeships from the 11-member D.C. Circuit. He argues that the caseload of the D.C. Circuit continues to shrink and therefore the vacant seats should not be filled. Senate Republicans have only confirmed one Obama nominee to the D.C. Circuit after scuttling his first nomination, meaning that there are now four active judges appointed by Republican presidents and four appointed by Democratic presidents. (All but one of the D.C. Circuit’s senior judges were appointed by Republican presidents.) So the D.C. Circuit which hears cases involving constitutional questions surrounding national security issues and myriad government regulations has leaned increasingly rightward for many years, producing outcomes supported by business interests. Republicans are fighting to keep the D.C. Circuit that way.

As noted here, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and other senators have pointed out that the D.C. Circuit’s caseload regardless of Grassley’s claims to the contrary, has grown since the time Grassley and his fellow colleagues voted to confirm President George W. Bush’s nominees to the court. Moreover, Republicans have also voted to confirm judges to other federal appeals court circuits with lower caseloads. But during today’s hearing that reality was tossed aside as Grassley was joined by other colleagues on the Judiciary Committee in trying to claim that Obama was seeking to “pack” the D.C. Circuit.

Constitutional Accountability Center’s (CAC) Judith E. Schaeffer has pointed out time and again how loopy Grassley’s claims are. In a July 10 statement, Schaeffer said, “Nobody should be fooled by Senator Grassley’s numbers game. His proposal to eliminate the 9th, 10th, and 11th judicial seats from the D.C. Circuit is hyper-partisan hypocrisy. In 2005, the D.C. Circuit had a smaller caseload than it has now, but this did not stop Senator Grassley and his colleagues from voting to confirm George W. Bush nominees Janice Rogers Brown and Thomas Griffith to the 10th and 11th seats on that court.”

Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas) both backed Grassley’s claim that the D.C. Circuit does not need judges. Lee said any “objective observer” would come to the same conclusion. Cruz claimed President Obama was engaged in deplorable “court-packing.” Tellingly Cruz added, “The D.C. Circuit has been a court that has been holding this Administration accountable and in particular in holding rulemaking accountable that has been contrary to federal law. And I believe there is an activist base that is pressuring the President, that is pressuring senior Senate Democrats, to get judicial nominees on the D.C. Circuit to protect regulations coming from this Administration.”

Well certainly the administration is concerned about the makeup of the D.C. Circuit, as have been all other previous administrations. It’s an incredibly important appeals court hearing complicated constitutional concerns that touch all aspects of American life.

It is also as it stands now a court that is dominated by judges beholden to a pro-corporate agenda. This year alone it has issued an opinion striking down the president’s recess appointments to the five-member National Labor Relations Board (NLRB) and another that invalidated an NLRB rule requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act. The D.C. Circuit has made it exceedingly difficult for the administration to enforce laws to protect the environment, another action corporate America appreciates. As the CAC’s Simon Lazarus and Doug Kendall noted this spring, “on any given day” the D.C. Circuit “has the power to throw the environmental movement into complete disarray.”

Oddly, Cruz in his press statement opposing the D.C. Circuit nominees concluded that “any effort to pack the court because the Administration doesn’t like the outcomes of judges applying the law fairly should be decried.”

But there are no accusations that Millett is anything but an exceptionally well-qualified candidate who as an appellate attorney has represented myriad interests. Indeed legal luminaries, both conservative and progressive, are strongly supporting her nomination. Judging The Environment’s website has links to the letters supporting Millett’s nomination.

There are three vacancies on the court that President Obama has a duty to fill. Sens. Grassley, Lee, Cruz and other Republicans have a constitutional duty to provide advice and consent that they are not taking seriously. No, that bunch is bent on protecting corporate interests and hobbling the Obama administration by any means possible. In doing so, the senators are pushing misleading, incomplete and inaccurate arguments in an ignoble campaign to ensure the D.C. Circuit remains of tool of corporate interests.