To: Editorial boards and journalists
From: Marge Baker, Executive Vice President, People For the American Way
Date: September 11, 2013
Re: On D.C. Circuit, Senate GOP Faces Choice Between Governance and Obstruction
The Senate Judiciary Committee will hold a hearing today on the nomination of Judge Robert L. Wilkins, one of President Obama’s three nominees to the influential Court of Appeals for the District of Columbia Circuit. Wilkins, like his fellow nominees Cornelia “Nina” Pillard and Patricia Millett, is indisputably qualified. In fact, the Senate unanimously confirmed him in 2010 to his current position on the U.S. District Court for the District of Columbia. But Wilkins’ nomination, like those of Pillard and Millett, risks being caught up in political gridlock that has nothing to do with his qualifications.
The Senate Judiciary Committee approved Millett’s nomination last month along party lines, with Republican senators making clear that their objections were all about politics and not about the nominee’s merits. The committee will vote on Pillard’s nomination next week.
We urge the Senate Judiciary Committee to fairly consider Wilkins and the Senate GOP to allow yes-or-no votes on all three nominees.
Another highly qualified, principled nominee
As President Obama made clear in his Rose Garden speech announcing the nominations of Wilkins, Pillard and Millett, all three are highly qualified, principled individuals who will be an enormous asset to the D.C. Circuit, frequently referred to as the second most influential court in the nation. A graduate of Harvard Law School, Judge Wilkins served for over a decade at the Public Defender Service for the District of Columbia, where he was recognized by the Legal Times as the office’s “premier advocate.” In 2002, Wilkins joined the respected law firm Venable LLP, where he oversaw complex financial industry cases and was recognized as one of Washington’s top lawyers by Washingtonian Magazine and the Legal Times.
In 1993, as a private citizen, Wilkins led one of the nation’s most influential legal battles against racial profiling. After his car was stopped and searched for drugs by Maryland state police while he was driving home from his grandfather’s funeral, Wilkins filed a lawsuit against the state. The suit revealed that the state police had directed its troopers to target African American motorists for highway drug searches. The case, Wilkins, et al. v. State of Maryland, influenced the entire country: 46 states now collect data to detect and prevent racial profiling of drivers.
Wilkins has been a leader in the effort to establish and create the National Museum of African American History and Culture. In 2000, he left his job to work full-time on the establishment of the museum, working with a bipartisan group of lawmakers to establish a commission to plan the museum. The Senate later appointed Wilkins to chair the commission’s site and building committee. The museum is set to open in 2015.
In 2010, the U.S. Senate unanimously confirmed Wilkins to the U.S. District Court for the District of Columbia. The American Bar Association has rated him Unanimously Well Qualified for the D.C. Circuit, its highest rating for judicial nominees.
Senate Republicans’ persistent obstruction
Senate Republicans have threatened to filibuster Wilkins’ nomination, along with those of fellow nominees Cornelia “Nina” Pillard and Patricia Millett, simply because they do not want President Obama to fill vacancies on the D.C. Circuit.
This is the most extreme manifestation yet of the Senate GOP’s campaign of delays and inaction against President Obama’s judicial nominees. Because of Republican slow-walking, President Obama’s confirmed judicial nominees have been forced to wait nearly three times as long for a yes-or-no vote from the Senate than were President George W. Bush’s nominees by this point in his presidency. During George W. Bush’s entire eight years in office, the Senate minority filibustered 18 judicial nominations; in the first five years of Obama’s presidency, there have already been 31 judicial filibusters. Many of these filibusters have had nothing to do with the nominees themselves: Nearly half of the Obama circuit court nominees who Republicans have filibustered are people they ultimately supported overwhelmingly.
The result is that more than ten percent of seats on lower federal courts are now or will soon be vacant. More than one third of current vacancies are in courts so over-extended that the Judicial Conference of the United States has declared them “judicial emergencies.”
This pattern holds true at the D.C. Circuit, where three of eleven active judgeships are vacant. The Senate has confirmed just one Obama nominee to the D.C. Circuit, in contrast to the four George W. Bush nominees, three Clinton nominees, three George H.W. Bush nominees and eight Reagan nominees.
This persistent obstruction has been detrimental to the federal court system, causing delays for individuals and businesses seeking their day in court.
But it has also delayed President Obama’s efforts to put qualified nominees with a diversity of backgrounds on the federal bench. Forty-one percent of President Obama confirmed nominees have been women, compared with just 22 percent of President Bush’s nominees. Likewise, 38 percent of President Obama’s nominees have been people of color, in contrast to just 18 percent of President Bush’s nominees.
The nominations of Wilkins, who is African American, and Millett and Pillard, who are both women, to the D.C. Circuit represent President Obama’s commitment to picking highly qualified, diverse nominees to the nation’s courts. Senate Republicans should give these nominees the respect of reviewing them on their merits, rather than using them as pawns in destructive political infighting.
In June 2013, President Obama nominated three extremely well-qualified people to fill the three vacancies on the DC Circuit Court of Appeals, a court that has been deemed “the second most important in the United States.” As the nominees - appellate attorney Patricia Millet, Georgetown law professor and appellate advocate Cornelia “Nina” Pillard, and D.C. District Court judge and former public defender Robert Wilkins - make their way out of the Senate Judiciary Committee and towards the Senate floor, Senate Republicans are threatening to ramp up their partisan gridlock by blocking votes on any of them.
The far right has accused the president of trying to “pack” the courts just for making nominations to existing vacancies, as the Constitution calls for. Senate Republicans have even introduced a bill to eliminate the three judgeships, just to keep President Obama from filling them.
In anticipation of the fight we expect to see this fall, People For the American Way has drafted an activist toolkit for concerned citizens across the United States who understand the importance of the courts, and who know we must stand up against Republican obstruction. Check it out here:
The Weekly Standard has a long piece in its latest print issue defending Senate Republicans’ threat to filibuster President Obama’s three nominees to the Court of Appeals for the District of Columbia Circuit. It’s no surprise that the Standard is backing Republican obstruction, but the extent to which they must dance around the facts in order to do so is remarkable.
The piece, written by Adam J. White, a former clerk of ultra-conservative Reagan nominee and now senior D.C. Circuit judge David Sentelle, gives an extensive history of the D.C. Circuit…but leaves out a few major details.
Here are the highlights of the Weekly Standard’s selective history of the D.C. Circuit.
1. What Caitlin Halligan filibuster?
White incorrectly notes that President Reagan had seven D.C. Circuit nominees confirmed during his two terms in office (he actually had eight nominees confirmed) and correctly notes that President George H. W. Bush had three. But he doesn’t quite explain the reason that only one of President Obama’s nominees has so far been confirmed to the court:
Later that year, the president finally made two nominations for the court—former New York solicitor general Caitlin Halligan and respected Supreme Court litigator Sri Srinivasan—but he made no substantial effort to secure their confirmations before the 2012 election. After his second inauguration, the Senate unanimously confirmed Srinivasan; the White House withdrew Halligan’s nomination, at her own request.
White neglects to mention that President Obama’s first nominee to the D.C. Circuit, Caitlin Halligan, didn’t just “withdraw” from consideration – she was nominated five times when Republicans kept refusing to allow the Senate to vote on her nomination and actually forced the Senate to send the nomination back to the White House. She also faced multiple Republican filibusters based on completely made-up charges in a nomination struggle that lasted two and a half years. The idea that nobody made any effort to get Halligan confirmed is as preposterous as the explanations Republicans seized on to justify prohibiting the Senate from voting on her nomination.
2. What ideological agenda?
White mocks progressives for suggesting that “the D.C. Circuit is reflexively, ideologically antiregulatory”:
Similarly, those who seize on the court’s rejection of a single EPA rule, in EME Homer City, as evidence that the D.C. Circuit “has morphed into a hotbed of activist judges” (as a blogger for the liberal American Constitution Society put it) lack any sense of perspective. The same D.C. Circuit has affirmed the vast majority of the Obama administration’s greenhouse gas regulations, a regulatory program that far exceeds the cross-state air pollution rule at issue in EME Homer City in terms of cost and scope. Again, whether one agrees or disagrees with the decisions, they offer no plausible basis on which to suggest that the D.C. Circuit is reflexively, ideologically antiregulatory.
Perhaps he should read these words by Bush nominee Janice Rogers Brown, who last year took the opportunity of a routine case about the milk market to unleash a broad invective against the government’s power to regulate commerce, in which she accuses courts that uphold government regulation of putting “property at the mercy of the pillagers”:
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
Civil society, once it grows addicted to redistribution, changes its character and comes to require the state to feed its habit. The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect - a lot more. [internal quotations and citations removed]
And it’s not just words. This skewed interpretation of the Constitution has led the D.C. Circuit’s Republican-nominated judges to issue any number of anti-worker, anti-consumer opinions, including the recent one holding that requiring companies to inform employees of their rights under the law violates the free speech rights of employers.
3. What Bush nominees?
White closes with a repeat of the Republican talking point that there is no need for the vacancies on the D.C. Circuit to be filled, no matter who is nominated to fill them. He repeats the claims of right-wing activist Carrie Severino that “several” anonymous current D.C. Circuit judges have said that the court’s vacancies don’t need to be filled. (It would seem that these are the same anonymous judges that Sen. Chuck Grassley claims to have polled after he had already concluded the seats should be eliminated.)
Furthermore, a According to Carrie Severino in National Review Online, several of Judge Garland’s colleagues anonymously informed the committee that “the Court does not need additional judges” to handle its workload. “If any more judges were added now, there wouldn’t be enough work to go around.”
Although Sen. Grassley trotted out the anonymous quotes during a Senate hearing, he conspicuously refused to include the responses he got to the questionnaire he’d secretly sent to DC Circuit judges in the public record. The thing is, actual, non-anonymous authorities have come out to say that yes, the D.C. Circuit’s seats do need to be filled. Citing the court’s uniquely challenging caseload, former D.C. Circuit judge Patricia Wald wrote an op-ed (under her own name!) calling for the confirmation of both of the then-pending nominees and for the full staffing of the court. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” she wrote.
Even Chief Justice John Roberts has explained that because of its unique place in the justice system, the D.C. Circuit’s workload cannot be compared to that of other federal courts.
White goes on to claim that the anonymous claims that no more judges are needed “are confirmed by the federal judiciary system’s official data.” But his numbers aren’t exactly right. He claims that the court now has 17 judges hearing cases – in fact that number is 14: eight active judges and six judges who have taken semi-retired senior status.
The judges’ anecdotes are confirmed by the federal judiciary system’s official data. Since 2001, the court has added four judges (to “replace” four who took senior status). In that same period of time, the court’s workload has remained virtually constant: 1,319 pending cases in March 2001, 1,315 in September 2012. The nation’s courts face many genuine personnel shortages; the federal judiciary formally designates some courts as “judicial emergencies,” a list published on the judiciary website (and linked by the Justice Department’s own website). The D.C. Circuit is nowhere among them; with 17 judges now hearing cases, it has by far the lightest “per capita” appellate caseload in the country.
The points of comparison that White picks in an attempt to illustrate the court’s supposedly consistent caseload are misleading, at best. The fact that the court had 1,319 pending cases in March 2001 and 1,315 in September 2012 is meaningless for the current debate.
Instead, let’s look at the caseload in the spring of 2003 when Republicans supported the confirmation of George W. Bush nominees John Roberts and Miguel Estrada to the 9th and 10th seats. Two years later, Republicans successfully pushed to confirm Janet Rogers Brown and Thomas Griffith to the 10th and 11th seats, when there were 1,313 pending cases. Fast forward to today, when the GOP is claiming that no more than eight judges are needed on the D.C. Circuit, and the court has 1,456 pending cases. That is a whole lot more cases for a whole lot fewer judges to process.
4. What obstruction?
White concludes by saying that there is “no reason for the Senate to accelerate its own review or confirmation” of the three D.C. Circuit nominees:
The D.C. Circuit does not “need” President Obama to appoint more judges. President Obama wants to appoint more judges. As a matter of presidential prerogative, that is a perfectly fine reason to nominate judges—but it is no reason for the Senate to accelerate its own review or confirmation of nominees.
The thing is, nobody’s asking the Senate to confirm these nominees in the dark of night. Each is getting a public hearing and answering pages of written questions from senators. What the Senate GOP is threatening to do is deny these nominees up-or-down votes for reasons having nothing to do with the nominees themselves. White provides no justification for filibusters of these nominees who the president has used his “presidential prerogative” to nominate.
Earlier this week President Obama nominated three unquestionably qualified candidates – appellate attorney Patricia Millet, former civil rights attorney Cornelia Pillard and D.C. District Court judge Robert Wilkins – to the D.C. Circuit, the second most influential court in the country. Republicans are already fighting hard against these nominations, claiming that the D.C. Circuit doesn’t have a large enough workload to necessitate filling the vacant seats. Sen. Chuck Grassley (D-IA) even went as far as to say, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.”
Not quite. Glenn Kessler at The Washington Post wrote an article this morning delving deeper into Sen. Grassley’s claims. Kessler wrote,
“Challenged by Grassley’s claim that the D.C. Circuit is last ‘no matter how you slice it,’ we came up with two other measures that might shed more light on the D.C. Circuit’s workload… One way to measure this is by looking at the data for ‘administrative appeals.’
In 2012, nearly 45 percent of those appeals at the D.C. Circuit involved administrative appeals concerning federal rules and regulations, which many experts say are highly complex and take more time to review. By contrast, at the other circuits, virtually all of the administrative appeals involve immigration cases. Using the data in Table B-3, we found that in the other circuits, administrative appeals that did not involve immigration matters accounted for less than 3 percent of the appeals. (In some circuits, it was less than 1 percent.)”
In other words, the D.C. Circuit is considering some of the most intricate and far-reaching cases of any court. The complexity of these types of cases make apples-to-apples comparisons with other circuits difficult.
“Another measure of the complexity of the cases are statistics on written opinions. The raw data suggest that judges on the D.C. Circuit write fewer opinions than judges on other appeals circuits. (This was one stat that Grassley staff sent us.) But Table S-3 shows that the D.C. Circuit produced a greater proportion of written, signed opinions on cases determined on the merits than most other circuits.”
Overall, the Post concludes,
“[T]he certainty in Grassley’s argument is particularly misplaced, given the unusual nature of the D.C. Circuit… you can’t just assert that one appeals filing is equal to another — or that one set of statistics is better than another. Depending on the metrics, the D.C. Circuit could very well be in first place.”
In 2005, Sen. Grassley did not seem to have these workload concerns when he voted to confirm Bush nominees Janice Rogers Brown and Thomas B. Griffith to the tenth and eleventh seats on the D.C. Circuit. Yet when he and other Republicans cast those votes, the court was handling the same number of cases as it is now. As President Obama pointed out in his speech announcing the three nominees, this is an overtly political move on the part of Senate Republicans:
“When a Republican was president, 11 judges on the D.C. Circuit Court made complete sense. Now that a Democrat is president, it apparently doesn't – eight is suddenly enough.”
Today, President Obama nominated three people – experienced appellate attorney Patricia Millet, Georgetown law professor and former civil rights attorney Cornelia “Nina” Pillard and D.C. District Court judge and former public defender Robert Wilkins – to the influential Court of Appeals for the D.C. Circuit.
All three have stellar qualifications. Yet, Senate Republicans were threatening to block all three even before they knew who the nominees would be.
In a Rose Garden speech introducing the nominees, President Obama blasted Republican obstruction and urged the Senate to quickly review and hold votes on all three. “The Constitution demands that I nominate qualified individuals to fill those seats,” he said. “What I am doing today is my job. I need the Senate to do its job.”
So one of the most important responsibilities of a President is to nominate qualified men and women to serve as judges on the federal bench.
And Congress has a responsibility, as well. The Senate is tasked with providing advice and consent. They can approve a President’s nominee or they can reject a President’s nominee. But they have a constitutional duty to promptly consider judicial nominees for confirmation.
Now, throughout my first term as President, the Senate too often failed to do that. 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 given an up or down vote in the Senate -- 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.
Despite that, some Republicans recently have suggested that by nominating these three individuals, I’m somehow engaging in -- and I’m quoting here -- in “court-packing.” (Laughter.) No -- people laugh, but this is an argument I’ve made. For those of you who are familiar with the history of court-packing, that involved Franklin Delano Roosevelt trying to add additional seats to the Supreme Court in order to water down and get more support for his political agenda. We’re not adding seats here. We’re trying to fill seats that are already existing. Each of the past five Presidents has seen at least three of their nominees confirmed to the D.C. Circuit. Since I’ve been President, obstruction has slowed that down to one.
Right now, there are three open seats on a critical court. I didn’t create these seats. I didn’t just wake up one day and say, let’s add three seats to the District Court of Appeals. These are open seats. And the Constitution demands that I nominate qualified individuals to fill those seats. What I am doing today is my job. I need the Senate to do its job.
For more background on the D.C. Circuit, see PFAW’s Marge Baker’s piece in the Huffington Post yesterday, “Five Things Republicans Don’t Want You to Know About the D.C. Circuit.”
The New York Times reported this week that President Obama is planning to nominate three judges to fill long-vacant seats on the influential D.C. Circuit Court of Appeals. This is hardly unheard of: every president since Jimmy Carter has placed at least three judges on the D.C. Circuit, and Obama only just had his first nominee confirmed to the court.
But Senate Republicans and conservative activists really, really don’t want President Obama to put any more judges on the D.C. Circuit – perhaps because it is currently dominated by Republican nominees who are intent on rolling back things like clean air regulations, cigarette labeling requirements, and National Labor Relations Board rulings.
So the Senate GOP is threatening to filibuster anybody Obama names to the court and even trying to push through a law permanently deleting the vacant judgeships in order to prevent Obama from filling them.
What has resulted is one of the more bizarre manifestations of Obama Derangement Syndrome. The talking point that Senate Republicans and their allies have landed on to defend this planned obstruction is that President Obama, in nominating judges to existing judicial vacancies as is required by his job, is in fact “packing” the D.C. Circuit in the style of FDR. (Or, in the words of The Wall Street Journal’s editorial board, like a “king”).
In a column for Breitbart News yesterday the Family Research Council’s Ken Klukowski goes even further, writing that by merely planning to nominate judges to the court – a constitutional requirement of his job fulfilled by every one of his predecessors – Obama has launched an “attack on the independence of the federal courts,” “declared war on judicial independence,” and is “trying to declare law by executive fiat.”
Now that Obama has declared war on judicial independence, Republicans are planning a counter-strategy. There are 13 federal appeals courts. The D.C. Circuit’s caseload is light, while several other circuits are overloaded. Sen. Charles Grassley and Senate Republicans are proposing moving those three seats to courts that could very much use them. Obama would still appoint those three judges, but not to the D.C. Circuit.
It takes legislation to create or move federal judgeships, so this is shaping up as a major part of the battle over courts that are independent of political manipulation.
There are only 80 slots on the Supreme Court’s docket every year. For 20,000 federal appeals each year, whatever the appellate court says is the final word. Obama is hoping that if he can overhaul the judicial balance of the court, his unprecedented claims of federal power might withstand court challenges. From Obamacare to EPA requirements, labor rules, and IRS rules, all these topics and more are going before the D.C. Circuit.
Obama cannot enact major liberal legislation now that he’s lost the House and might also lose the Senate next year. Instead, he’s trying to declare law by executive fiat. Whether he gets away with it likely turns on whether he can change Senate rules and then pack the D.C. Circuit with sympathetic judges.
This attack on the independence of the federal courts should be of concern to all Americans.
Maine Republican Sen. Susan Collins signed on today as a cosponsor of a blatantly political bill meant to deny President Obama, unlike any of his predecessors, the ability to fill vacancies on the D.C. Circuit Court of Appeals.
The D.C. Circuit is the second most influential court in the country, behind the Supreme Court. It has the final word on scores of federal laws and regulations, from consumer protections to workers’ rights to environmental protections.
For more than 30 years, presidents of both parties have placed numerous judges on the D.C. Circuit:
Senate Republicans prevented President Obama from placing a single nominee on the court during his first term and the first four months of his second, despite the fact that one-third of its active judgeships were vacant. They were so eager to keep the court dominated by Republican-nominated judges that they twice filibustered President Obama’s first nominee to the court, the eminently qualified Caitlin Halligan. Yesterday, after a ten-month delay, the Senate finally confirmed an Obama nominee, Sri Srinivasan, to fill one of the court’s four vacancies. But Republicans are indicating that their cooperation will stop there.
Senate Republicans are not only vowing to block any Obama nominees to the remaining three seats on the D.C. Circuit, they are actually proposing a bill that would eliminate those three seats entirely in order to prevent President Obama from filling them.
The bill, sponsored by Senate Judiciary Committee ranking member Chuck Grassley and cosponsored by every other Republican member of the Judiciary Committee, just gained its first non-committee cosponsor: Sen. Collins.
The bill’s backers claim that the D.C. Circuit doesn’t have a great enough workload to justify filling the remaining three judgeships. However, Sen. Collins’ own voting record provides a perfect refutation of that argument.
Sen. Collins and her allies object to Obama’s filling the 9th, 10th and 11th seats on the D.C. Circuit. However, when George W. Bush was president, Sen. Collins had no such reservations about the need to fill the court's vacancies. In 2006, Collins voted to confirm Bush nominee Brett Kavanaugh to the 10th seat on the D.C. Circuit. In 2005, she voted to confirm Bush nominees Janice Rogers Brown to the 10th seat on the court and Thomas Griffith to the 11th.
Following the Griffith confirmation, which Collins supported, the D.C. Circuit’s caseload was 119 cases per active judge. If every one of the D.C. Circuit’s 11 seats were filled today -- including the three seats that Sen. Collins wants to eliminate – the court’s caseload would be slightly higher than it was then, at 120 cases per active judge. Sen. Collins evidently thinks that what was a reasonable caseload for the court under President Bush is somehow wastefully low under President Obama.
Meanwhile, here is Sen. Sheldon Whitehouse refuting Sen. Grassley’s absurd claim that President Obama is trying to “pack” the D.C. Circuit by filling its vacancies:
WASHINGTON -- People For the American Way Executive Vice President Marge Baker issued the following statement on the Senate’s unanimous confirmation of Sri Srinivasan to the Court of Appeals for the D.C. Circuit:
“We congratulate Mr. Srinivasan on his confirmation to the Court of Appeals for the D.C. Circuit.
“The fact that Senator Reid was forced to file cloture in order to secure an agreement with Republicans to vote on a nominee whom they enthusiastically support is a sign of how far Senate Republicans have taken their mindless obstruction.
“Unfortunately, the Senate GOP is already looking ahead to further obstruction of this critically important court, one-quarter of whose active judgeships still remain vacant. Having prevented President Obama from filling a single seat on the D.C. Circuit until today, they are now threatening to strip the three remaining vacant seats from this important court rather than allow the president to fill them. This promised obstruction is purely politically motivated and cannot be allowed to succeed.”