Unable to come up with any legitimate reason to filibuster President Obama’s three nominees to the Court of Appeals for the D.C. Circuit, Senate Republicans have landed on a not-so-convincing excuse: They claim that the court has too many judges as it is and that it would be wasteful to fill its remaining vacancies.
Sen. Charles Grassley of Iowa has even gone so far as to introduce a bill that would permanently reduce the number of seats on the influential court from eleven to eight (the number of active judges currently sitting on the court), thereby preventing President Obama from placing any more nominees on the court. (The president has had one nominee confirmed to the DC Circuit, compared to four nominees under President Bush and eight under President Reagan).
Grassley’s bill would reduce the number of slots on the DC Circuit by three and “reallocate” two of those seats to circuits that he contends need the judges more.
There are a number of gaping flaws in Grassley’s logic, the first of which is that he and his fellow Republicans were eager to fill the very same DC Circuit seats that they are now trying to eliminate back when President Bush was the one making nominations.
Then, there’s the fact that there seems to be absolutely no basis for reallocating the two D.C. Circuit seats to the Eleventh and Second circuits. The official office that evaluates the needs of federal courts and makes recommendations for adding and removing seats doesn’t include the D.C. Circuit in its recommendations because the court’s caseload is uniquely complex and difficult to compare to that of other courts…and it also hasn’t recommended that the Eleventh or Second circuits get new judges.
This was confirmed by a former Chief Judge of the Eleventh Circuit whose statement [see p. 34 of this pdf] was submitted into the Senate record last month confirming that his former court indeed does not need new judges:
Since my appointment to the Eleventh Circuit on October 1, 1990, the judges of our court annually have voted whether or not we should ask Congress to authorize more federal judges. Each time our court considers the topic, an overwhelming majority of our members have voted “no!”
Even one of the co-sponsors of the court-rigging bill – Sen. Jeff Sessions – has gone on record saying that the Eleventh and Second Circuits actually don’t need new judgeships.
All of which makes one suspect that of all the goals that Sen. Grassley might have in mind with the Court Efficiency Act, the efficiency of the courts is probably not one of them.
Later this week, the Senate will vote on ending the Republican filibuster of Patricia Millett, the first of President Obama’s three nominees to fill vacancies on the influential US Court of Appeals for the DC Circuit. Republican senators have no beef with Millett personally (she’s a renowned appellate attorney, military spouse and black belt), but they’re still threatening to block all three nominees because, they contend, President Obama is attempting to “pack” the 11-member court by going through the constitutionally mandated process to fill its three vacancies.
Backing up this obstruction effort, one familiar outside group has again stepped up to carry Republicans’ water: the Judicial Crisis Network.
In the 2004, as the battle was heating up over confirming some of President Bush’s most far-right nominees, former Bush-Cheney religious right outreach staffer Gary Marx and former Justice Thomas clerk Wendy Long teamed up to found a group called the Judicial Confirmation Network, housed in the offices of the right-wing American Center for Law and Justice and dedicated to “working to ensure a fair appointment process of highly qualified judges and justices.”
Four years later, the Judicial Confirmation Network found itself in a bind when President Obama was elected to be the one nominating federal judges. All of a sudden, JCN lost interest in working to confirm “highly qualified judges and justices” to the bench. So, in 2010 the group changed its name to the Judicial Crisis Network and announced that its mission would heretofore be “to confront the radical legal and legislative threats facing our country” – that is, trying to prevent President Obama from filling seats on the federal courts with highly qualified judges and justices.
Today, the Judicial Crisis Network has emerged as the primary outside group working to prevent the Senate from confirming President Obama’s three nominees to fill the three vacancies on the influential US Court of Appeals for the District of Columbia Circuit. JCN is running radio ads targeting moderate senators urging them to filibuster the three nominees and has launched a snazzy website with infographics purporting to show that President Obama’s nominating qualified people to existing judicial vacancies amounts to “court packing.”
Our colleague Paul Gordon has done a thorough point-by-point takedown of JCN’s “court packing” infographics, but the bottom line is this: Like Senate Republicans who are now trying to permanently cap the DC Circuit at eight judges, JCN sang an entirely different tune when it was a Republican president was doing the nominating.
In the era when JCN was the Judicial Confirmation Network, President Bush had four nominees confirmed to the DC Circuit, bringing its total number of active judges up to 11. Meanwhile, due to Republican obstruction, President Obama has had just one nominee confirmed to the court, bringing the total number of judges on the court to eight.
JCN and Republican senators contend that the DC Circuit’s caseload is significantly lower now than it was then, meriting a reduction of the number of judges on the court. That’s simply not true [pdf]. For instance, in June 2005, when the Senate confirmed far-right Bush nominees Janice Rogers Brown and Thomas Griffith to the tenth and eleventh seats on the DC Circuit, there were 1,313 cases pending before the court. Today, as the GOP is trying to cap the court at eight judges, it is facing 1,479 pending cases.
In 2005, the Judicial Confirmation Network was reminding senators of their “obligation to bring these nominations to the floor for a fair vote.” Today, the Judicial Crisis Network is urging senators to deny floor votes to nominees in the same position.
Later today, JCN’s chief counsel Carrie Severino will be a witness at a House hearing on the DC Circuit titled “Are More Judges Always the Answer?” We can guess that Severino’s public answer to that question will be “no.” But a more forthright answer would be, “It depends who’s nominating them.”
President Obama has nominated three extraordinarily well qualified individuals to serve on the influential U.S. Court of Appeals for the D.C. Circuit. But the Republican Party's intransigence and opposition have turned this into one of the most important obstruction fights we've seen in the last five years.
On Tuesday, September 24, People For the American Way hosted a telebriefing with U.S. Senator Richard Blumenthal (D-CT) to discuss the matter.
Senator Blumenthal, who sits on the Judiciary Committee, chaired last week’s hearings on the nomination of Nina Pillard to a seat on the D.C. Circuit. He gave a first-hand account of how very qualified she is to serve on this all important court. He explained how important the D.C. Circuit is in the federal judicial system, why it’s important to fill the current vacancies on the court, and how Pillard exemplifies the brilliance and integrity that is so important in filling these vacancies.
Listen to the call for yourself here:
We had a lot of questions from callers about the need to overcome the GOP’s obstruction on these nominees and talked about how important it is for constituents to let their Senators know that it’s time for the obstruction to end.
Thanks to all the PFAW members who the time to join our call. We’ll continue to fight to make sure President Obama's nominees get the simple yes or no votes they deserve.
The former George W. Bush administration official who founded a group to push for the confirmation of Bush’s judicial nominees has come up with the most ridiculous justification yet for a possible Republican filibuster of President Obama’s three nominees to vacancies on the Court of Appeals for the District of Columbia Circuit. In a Washington Times column today, C. Boyden Gray argues that Obama’s filling all the seats on the court is in fact a "drive to pack" the court and would “risk politicizing an institution that is – and should be – above politics” and lead to a loss of “collegiality” among the judges on the court.
Gray’s concern for the independence of the judiciary is admirable, but it’s interesting that he seems to have developed this concern only when a Democratic president started nominating judges.
In fact, Gray seems to have held the opposite view of what to do with the D.C. Circuit during the George W. Bush administration, when he founded and led an organization dedicated to getting President Bush’s most conservative nominees confirmed to the federal courts. Among the nominees Gray worked to confirm were current D.C. Circuit judges Thomas Griffith, Brett Kavanaugh and Janice Rogers Brown, who have given the court a serious right-wing ideological bent, and now- Supreme Court Chief Justice John Roberts. In total, thanks in part to Gray, Bush had four nominees confirmed to the D.C. Circuit, filling all eleven of the twelve seats then available.
In contrast, President Obama has had just one nominee confirmed to the D.C. Circuit in his five years in office, bringing the total number of judges on the court up to eight out of eleven designated seats. This puts him far behind all of his recent predecessors in placing judges on the court. In fact, every president since Jimmy Carter, going through the process laid out in the Constitution, has had at least three nominees confirmed to the D.C. Circuit.
So, why does Gray think President Obama’s nominees would so unbalance the careful social order of the court? He cites the effort that Judge Harry Edwards, a Carter nominee, made in the mid-1990s to get judges on the court to work together across ideological lines, and Judge Edwards’ observation that “smaller courts tend to be more collegial.” Which is a great argument for confirming judges who are skilled at working across ideological lines (for instance, Nina Pillard) but makes no sense as an argument simply not to let a given president fill seats on the court.
In the column, Gray also backs Chuck Grassley’s effort to eliminate the three D.C. Circuit seats to prevent President Obama from filling them and transfer two to other, less influential, circuits – a plan that has no backing in actual caseload data.
If these are the logic-jumping lengths that conservatives have to go to justify their all-out obstruction of President Obama’s judicial nominees, maybe it’s time they just gave up and admitted that they just don’t want to let President Obama do his job.
The Senate today confirmed Justice Department attorney Todd Hughes to a federal appeals court, making him the highest-ranking openly gay federal judge in U.S. history.
President Obama has nominated more openly gay men and women to the federal courts than all his predecessors combined – by a long shot. So far, the Senate has confirmed seven openly gay Obama nominees to federal district courts. Before Obama’s presidency, there had been just one openly gay federal judge, Clinton nominee Deborah Batts.
Two other openly gay district court nominees are still in committee, but one of them –openly gay district court nominee, Florida’s William Thomas – is currently being held up indefinitely by Sen. Marco Rubio.
But today, the Senate’s attention is on Todd Hughes, who will be the newest judge on the Federal Circuit. The Washington Post outlines Hughes’ impressive credentials:
Hughes, who has served as deputy director of the commercial litigation branch of the Justice Department's civil division since 2007, has specialized in the kinds of issues that come up before the bench on which he will soon sit. Unlike the other 12 Circuit Courts of Appeals, the Federal Circuit specializes in a handful of designated issues including international trade, government contracts, patents, trademarks, veterans' benefits, and public safety officers' benefits claims. Hughes could not be reached for a comment.
Geovette Washington, who is the Office of Management and Budget's general counsel and has been friends with Hughes since they attended law school together, described him as "a problem solver" who "can do very complicated constitutional issues," but also brings a degree of pragmatism to cases.
"I have always been amazed by how intelligent he is, but also how practical he is," she said, adding that Hughes is well prepared for the Federal Circuit because he's appeared before it so many times. "He's dug in and done the hard work on those issues."
Yesterday, the Senate Judiciary Committee voted along party lines to approve the nomination of Georgetown Law professor Cornelia “Nina” Pillard to the Court of Appeals for the District of Columbia, which is often considered to be the nation’s second-highest court. The party-line vote wasn’t exactly a surprise – Republicans have decided they don’t want President Obama to fill any of the D.C. Circuit’s three vacancies, so have voted against both nominees who have come before them so far – but the content of at least some GOP senators' objections to Pillard was notable.
Specifically, both Republican senators who chose to speak on their decision to vote against Pillard went out of their way to object to Pillard’s record on women’s equality.
Yes, the Republican “rebranding” effort is going so well that they are now threatening to hold up a judicial nominee because she believes that men and women should be equal in the eyes of the law and has been very successful in arguing that view in the courts.
Pillard has a long record of working with Republicans and Democrats to defend women’s equality: She worked with the Bush administration to successfully defend the Family and Medical Leave Act in the Supreme Court and crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women (which earned her the respect of, among others, the head of the school who was at the time opposed to allowing women in).
She also has worked on women’s equality issues as an academic, including questioning abstinence-only education that presents a double standard to boys and girls…which is what has sent the far right into a fit.
At yesterday's committee vote on Pillard’s nomination, both Sen. Chuck Grassley (the ranking Republican on the committee) and Sen. Orrin Hatch lifted talking points from right-wing activists like the Family Research Council, Phyllis Schlafly and Ed Whelan of the National Review to attack the nominee’s academic writings on reproductive rights and abstinence education and to even, bizarrely, question whether she appreciates the “benefits of marriage.”
And then every single Republican on the committee voted against allowing her nomination to go to the full Senate for a vote.
To put this in context, Republican senators including Grassley and Hatch were quick to defend demand the confirmation of George W. Bush judicial nominees who made rape jokes and belonged to clubs that excluded women and espoused any number of offensive views, claiming that they could hold these personal views and still be fair judges. As PFAW's Drew Courtney wrote in the Huffington Post yesterday:
Too often we're told that judicial nominations fights are too complicated, too subtle to get major national attention. Not this time. The Republican message is crystal clear: rape-joke making, gay-bashing, abuse-defending, discrimination-supporting, law-skirting, ideology-pushing Republican men are welcome to be judges in our federal courts.
Women who expect to be treated as equals are not.
Georgetown Law professor Nina Pillard, who has had a long and impressive career in law and public service, was approved today by the Senate Judiciary Committee to serve on the Court of Appeals for the District of Columbia. Her nomination now goes to the full Senate.
Scores of people and organizations who have worked with Professor Pillard or observed her work have written to the Senate in support of her nomination. Her supporters include:
Alumni of the Virginia Military Institute, which Pillard helped open to women:
VMI gauges its success as an institution by measuring the societal contributions of its alumni. Professor Pillard would rank high for her work to open VMI to female cadets. The case was initiated by the George H.W. Bush Administration and made its way to the Supreme Court during Professor Pillard’s tenure at the office of the Solicitor General of the United States. Professor Pillard drafted the five Supreme Court briefs for the United States and her winning arguments opened VMI’s doors for women who have become leaders in the armed forces, elsewhere in public service, and in the private sector.
Josiah Bunting III, superindent of the Virginia Military Institute when women were first admitted:
During the course of the United States v. Virginia case, I was impressed by Pillard’s fairness and rigor. She respected others’ strongly held views about male-only education at VMI, and I always felt that while we had opposing positions at the time, she comported herself with integrity and understanding — qualities that distinguish the best judges at all levels.
A bipartisan group of former attorneys of the Justice Department's Office of Legal Counsel, where Pillard served for two years:
We believe that Ms. Pillard has the skill, character, and objectivity that would make her a superlative judge on the D.C. Circuit. She was a respected leader and trusted advisor in OLC, valued for her fair-minded and meticulous approach to legal questions of all sorts. She is an exemplary nominee whom we wholeheartedly endorse.
Dozens of retired members of the armed forces:
Our experience advocating for the full participation of women in the armed forces has shown us that women, indeed, are suited for rigorous military training, service, and leadership. Our military and our nation benefit when both women and men are able to fully contribute to the defense of our country. We support Professor Pillard’s nomination because her accomplishments and credentials demonstrate that she has the qualifications to be a federal
appellate judge, and because her dedication to principles of equality demonstrates that she will be a great one. We urge you to give her a swift and fair hearing, and vote to approve her nomination.
In her legal advocacy and scholarship, Professor Pillard shows a clear understanding offundamental distinctions between the roles of courts and the political branches, and between law and culture, morality, politics or other important sources ofnorms that guide and constrain human behavior. Throughout her work, she has shown an appreciation ofnuance and respect for opposing viewpoints, grounded in a profound commitment to fair process and fidelity to the law.
In short, Professor Pillard is a talented advocate, a brilliant legal mind, a sensible and moderate problem solver, and a careful thinker who has devoted her career to public service and work for others. We wholeheartedly urge that you confirm her to the D.C. Circuit.
Prominent prosecutors and law enforcement officials:
We urge her confirmation because she is unquestionably eminently qualified, and is a sensible and fairminded lawyer and scholar who has worked extensively with law enforcement in her career. She brings to the bench sensitivity to the compelling need for effective and legitimate law enforcement in the modern era. She stands for fidelity to the law above all, and has demonstrated an unwavering commitment to the important, albeit limited, role of the courts in our federal system
I believe that Ms. Pillard has had invaluable work experience that makes her especially well-suited to the bench. While I do not know Ms. Pillard personally, others in the law enforcement community whom I know and respect are supporting her, and their views, combined with her superb experience and qualifications, convince me that she would make an excellent judge, especially on the DC Circuit, which requires someone with such experience and qualifications.
Based on our long and varied professional experience together, I know that Professor Pillard is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity. We certainly do not agree on the merits of every issue, but Nina has always been fair, reasonable, and sensible in her judgments. She approaches faculty hiring, teaching and curriculum, and matters of faculty governance on their merits, without any ideological agenda--at times even against the tide of academic popularity to defend and respect different views and different types of people.
As we do not share academic specialties, I have not studied Professor Pillard's writings in full, but I know her to be a straight shooter when it comes to law and legal interpretation. She is a fair-minded thinker with enormous respect for the law and for the limited, and essential, role of the federal appellate judge-- qualities that make her well prepared to taken on the work of a D.C.
Circuit judge. I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner.
Ms. Pillard’s record of achievement, and unanimous rating of Well-Qualified, the highest rating available, from the ABA’s Standing Committee on the Federal Judiciary, reflects her significant talents as an appellate litigator and scholar. Her legal career is remarkable for her accomplishments and the breadth and depth of her experience, and her reputation for fairmindedness, collegiality, and dedication to principles of equal justice is well founded.
WASHINGTON – People For the American Way Executive Vice President Marge Baker issued the following statement in response to the Senate Judiciary Committee’s approval of the nomination of Georgetown Law professor Cornelia T.L. “Nina” Pillard to the U.S. Court of Appeals for the District of Columbia.
Professor Pillard’s nomination is now with the full Senate, which I hope will give her the fair consideration that she deserves.
Professor Pillard is an exceptionally qualified nominee. She has earned enormous respect from her colleagues across the ideological spectrum in her career as an appellate attorney, where she crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women and joined the Bush administration in successfully defending the Family and Medical Leave Act. She now serves as co-director of Georgetown’s renowned Supreme Court Institute, which on a pro bono basis helped prepare attorneys for every single Supreme Court argument in the last term – regardless of the side of the case they were on. Her national reputation as a supremely talented and consistently fair attorney is well-earned.
In addition, Professor Pillard would become just the sixth women confirmed to the D.C. Circuit Court in its 120-year history.
In looking for excuses to avoid confirming Professor Pillard to this vacancy, some on the Right have attacked her academic work promoting the entirely mainstream notion that men and women should be treated equally under the law. The fact that in 2013 a nominee is being attacked for believing in women’s equality is just absurd.
We applaud the Judiciary Committee members who voted in support of this highly qualified nominee, and hope that the full Senate will review her qualifications and give her a fair yes-or-no confirmation vote.
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.