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.
In a WorldNetDaily column today, legendary anti-feminist Phyllis Schafly joins the far-right attacks on Cornelia “Nina” Pillard, one of President Obama’s three nominees to fill vacancies on the influential Court of Appeals for the D.C. Circuit.
As Slate’s Dahlia Lithwick has ably explained, the far right’s objection to Pillard is what they see as her excessive support for women’s equality – including “radical” ideas like access to birth control and paid family leave.
So it’s no surprise that Schlafly, who has built a long career out of opposing any and all advances to women’s rights, is now joining the Family Research Council in skewing the record to attack Pillard, whom she calls “a scary feminist” with a trail of “extremist feminist writings”:
Obama not only has the help of the ACLU and similar organizations to pursue anti-religion litigation, but he is determined to appoint many like-minded judges to the federal courts. He recently nominated a scary feminist named Nina Pillard to the important D.C. Circuit Court of Appeals.
Her extremist views include the wild allegation that abortion is necessary to help “free women from historically routine conscription into maternity.” She says that those who oppose Obamacare’s contraception-abortion mandate are really reinforcing “broader patterns of discrimination against women as a class of presumptive breeders.”
Obama would surely like to get supremacist judges to carry out his goals to rewrite the meaning of the First Amendment. We hope there are enough Republicans in the Senate to expose Pillard’s paper trail of extremist feminist writings.
It’s worth mentioning that the woman who Schlafly calls a “scary feminist” has a long history of finding common ground across ideological divides. She worked on the same side as both Bush administrations as a litigator on several major constitutional cases. She also runs Georgetown Law School’s respected Supreme Court Institute, which helps lawyers from around the country in preparing for Supreme Court arguments without regard to which side they represent (including attorneys arguing every single case before the Supreme Court this year). She even led the committee whose research was used by the American Bar Association that found ultra-conservative Justice Samuel Alito “well qualified” for his job.
But Schlafly’s definition of “scary feminist” encompasses just about anyone who supports any sort of legal rights for women. In fact, Schlafly has gone to bat against Pillard before, criticizing two of the nominee’s most widely-hailed victories on behalf of women’s equality: winning the Supreme Court case brought by the George H.W. Bush Administration that opened the Virginia Military Institute to women, and working on the same side as George W. Bush administration lawyers to successfully defend the Family and Medical Leave Act in the courts.
Schlafly, of course, railed against both victories. She charged that the Supreme Court’s decision upholding the FMLA “was based on feminist fantasies about a gender-neutral society” and when the Supreme Court unanimously struck down VMI’s discriminatory admissions procedures, she wrote to the school’s alumni:
The massive government lawsuit against VMI wasn't about "ending sex discrimination" or "allowing women to have access to the same educational benefits that men have at VMI." It was a no-holds-barred fight to feminize VMI waged by the radical feminists and their cohorts in the Federal Government.
Since feminists successfully got women admitted into the military academies, and got the Clinton Administration to assign women to military combat positions, VMI and the Citadel remained as the most visible fortresses of the concept that men and women are fundamentally different. The feminists hate you just because you exist.
Which is to say that if Republican senators decide to adopt Schlafly’s definition of “scary feminist,” they should know that it includes not only the basic defense of reproductive rights, but also support for laws that allow women to work outside the home while raising children and the belief that public institutions shouldn’t discriminate on the basis of sex.
Today, the Senate Judiciary Committee will hold a hearing on the nomination of Cornelia “Nina” T.L. Pillard to the influential Court of Appeals for the D.C. Circuit. Pillard is one of President Obama's three nominees to fill vacancies on the court, which is currently operating with nearly one-third of its seats empty.
Pillard is a fair-minded, nationally recognized law professor and experienced appellate lawyer with an extraordinary record of service. She has won historic Supreme Court victories: she opened one of the last male-only public colleges to women, and protected the Family and Medical Leave Act. She has served two tours as a high-level government lawyer and is currently a distinguished and beloved professor at Georgetown University Law Center. Her expertise in appellate litigation led to her appointment as a co-director of Georgetown’s Supreme Court Institute, which assists lawyers from around the country in preparing for Supreme Court arguments, without regard to which side they represent. Her record demonstrates her superb character, judgment, and fundamental commitment to upholding the principles of our Constitution and laws.
Right-wing bloggers are already making nasty and untrue attacks on Professor Pillard, but here are the facts:
The National Review Online cited unnamed sources in a blog calling Professor Pillard a “complete ideologue.” In reality, Professor Pillard is a fair-minded, highly accomplished litigator with broad experience and an outstanding reputation for public service. She has litigated major constitutional cases brought or defended by Republican Administrations, and Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with Professor Pillard’s legal arguments. And prominent officials in Republican-appointed officials are supporting her nomination.
FACT: Because of Pillard’s unbiased approach to the law, which has earned her the respect of her colleagues, she was asked to chair an American Bar Association Reading Committee that evaluated Judge Samuel Alito’s qualifications to serve on the Supreme Court. Her committee’s evaluation led to the ABA rating Alito “well qualified."
FACT: Pillard serves on the Executive Committee of the Board of Directors of the American Arbitration Association, the world’s largest alternative dispute resolution provider.
FACT: Pillard has a long track record of fair and unbiased work, including litigating major constitutional cases brought or defended by Republican Administrations. And Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with her legal arguments.
FACT: President George W. Bush’s Assistant Attorney General Viet Dinh signed a letter of support for Professor Pillard citing her unbiased approach to the law.
The Family Research Council has attacked Professor Pillard, claiming she has radical liberal ideas on abortion, motherhood and abstinence only education.
The FRC wrongly attributed a quote to Professor Pillard which was actually a quote belonging to former Chief Justice Rehnquist.
The Family Research Council wrongly accuses Professor Pillard of broadly claiming that abstinence only education is unconstitutional, saying, “Pillard is so fiercely opposed to abstinence education that she has said publicly she would declare it unconstitutional.”
The FRC claimed that Professor Pillard has ‘extreme pro-abortion’ views when in fact Professor Pillard’s academic writing on abortion seeks ways to bridge the gap between abortion rights advocates and opponents by finding common ground for ways to reduce reliance on abortion.
WASHINGTON – People For the American Way today applauded the Senate confirmation of Tom Perez as Secretary of Labor. Marge Baker, Executive Vice President of People For the American Way, released the following statement:
“Anyone who cares about the fair treatment of workers or civil rights should be thrilled by the confirmation of Tom Perez. During his time in the Justice Department, Perez’s commitment to protecting the rights of Americans – whether they are women, people of color, LGBT people, or people with disabilities – has been extraordinary. He has spent his career fighting for the rights of all Americans and now he will be able to take that passion and commitment to the Department of Labor.
“Even though today’s vote is an important step forward, we must continue to confront the partisan gridlock in the Senate that is hurting the American people. We must ensure that the President’s judicial nominees, like his executive nominees, also receive up and down votes. The American people understand that when senators decide they’d rather play politics than do their jobs, it harms not only Congress but all of our country.”
The Senate Judiciary Committee today held a hearing for the first of President Obama’s three recent nominees to the DC Circuit Court of Appeals, attorney Patricia Ann Millett. Republican committee members, having no actual objections to Millett’s qualifications, used the opportunity to grandstand about what they see as the enormous injustice of a Democratic president nominating people to open seats on the federal judiciary.
Chief among the grandstanders, of course, was Sen. Ted Cruz of Texas, who spent most of his time telling Millett that Republican opposition to her nomination has nothing to do with her and has everything to do with President Obama’s supposed effort to “pack” the DC Circuit.
Very little of what he said had any basis in reality. He started out by claiming that the DC Circuit is currently “evenly divided” between Democratic and Republican nominees and that President Obama and Democrats are now trying to “pack the court” with Obama’s nominees:
Right now, the DC Circuit is evenly divided among active judges, with four Republicans and four Democrats. And you find yourself one of three nominees from the president. The president and senior Democrats on this committee have made clear that they want to pick a fight on the DC Circuit. They want to pick a fight on the DC Circuit, and unfortunately I believe part of this pressure, part of the effort of stopping qualified Republican nominees and then deciding to pick a fight now, is a desire to pack the court.
While it’s true that there are currently four Democratic nominees and four Republican nominees in active service on the court, Cruz obscures the fact that the court has an active backbench of six senior judges – five of whom are Republican nominees:
This imbalance exists because Republican presidents have nominated the bulk of DC Circuit judges in the past three decades -- 15 of the last 19 confirmed to the DC Circuit were nominated by Republicans. Far from “packing” the court, President Obama has had fewer judges confirmed to the DC Circuit than any of his four most recent predecessors.
Cruz continued, insisting that President Obama is trying to “pack” the court because it is “holding this administration accountable, and in particular, holding rule-making accountable that has been contrary to federal law”:
The DC Circuit has been a court that has been holding this administration accountable, and in particular, holding rule-making accountable that has been contrary to federal law. And I believe that there is an activist base that is pressuring the president, that has been pressuring senior Senate Democrats to get judicial nominees on the DC Circuit to protect the regulations coming from this administration. And I think any effort to pack the court because the administration doesn’t like the outcomes of judges applying the law fairly should be decried.
What Cruz is referring to is the fact that the D.C. Circuit is currently dominated by right-wing Republican nominees, who have delved into far-right legal theory to strike down common-sense protections for workers, consumers and voters – you can read about some of their most appalling decisions here. President Obama is not trying to “pack” the court to get the decisions that he wants, as Cruz alleges. Instead, he is using his mandate from American voters to pick judges who will restore some ideological balance to one of the farthest-right courts in the country.
Finally, Cruz declares that his objections to Millett have nothing to do with her “very fine professional qualifications” and instead have to do with too much “partisan politics” in judicial confirmations – partisan politics which he seems to have very little interest in putting aside.
Because I think partisan politics has driven this committee’s approach to the DC Circuit for over a decade. And I think that’s unfortunate, I would rather see a situation where able judges are confirmed irrespective of that. But it is not consistent with our responsibility to let one party prevent qualified judges from going to the court, and at the same time to enable packing the court to reach preferred outcomes. So I thank you for being here, and I think it’s regrettable, the overall context of this dispute, which as I said is irrespective of your very fine professional qualifications.
So, Cruz is refusing to support Millett, who he thinks is unquestionably qualified for the job, for purely political reasons… because he thinks the judicial nominations process has become too politicized.
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.”
When the Senate unanimously confirmed Sri Srinivasan to the Court of Appeals for the D.C. Circuit last month, Republicans patted themselves on the back for cooperating in a relatively efficient confirmation process. But, by any objective standard, Srinivasan’s confirmation process wasn’t that efficient at all. In fact, Republican obstruction of Srinivasan started when they delayed a hearing on his nomination for ten months, from June 2012 to April of this year.
But Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, is now pushing an alternate history of this delay on Srinivasan’s nomination. In a floor speech the day Srinivasan was confirmed, Grassley insisted that Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, “made no effort to schedule a hearing on this nominee until late last year.”
In a press release this week, Sen. Leahy explained why this argument is just plain false. In fact, he wrote, it was Senate Republicans who kept insisting that Srinivasan’s hearing be pushed back:
By July 19, 2012, I had determined that the paperwork on the Srinivasan nomination was complete and the nominee could be included in a hearing. It has been my practice as Chairman of the Judiciary Committee to give the minority notice and allow consultation before scheduling a nomination for a hearing. At that time, the next July hearing had been discussed as one devoted to the nominee to head the Antitrust Division at the Department of Justice, a nomination that itself had been delayed and to which there was Republican opposition. During the August recess, my staff asked Senator Grassley’s about holding the hearing on the Srinivasan nomination in September. They raised objections and concerns about proceeding with the D.C. Circuit nomination at that time but agreed to proceed with four district nominees and a Court of International Trade nominee.
In November, 2012, after the American people reelected President Obama, we raised the need for a hearing on the D.C. Circuit nomination anew. Republicans objected, again, in spite of the precedent of holding a hearing for one of President Bush’s D.C. Circuit nominees during a similar lame duck session. Instead, they wanted to proceed only with district court nominees during the lame duck. Republicans insisted that the Srinivasan hearing be put off until the new Congress and the new year. In deference to the Republican minority, I held off. They agreed that he would be included at the first nominations hearing of the 113th Congress.
Then, in early January of this year, when called upon to hold up their end of the bargain, Republicans balked.
This isn’t just a matter of settling a complicated Senate score. Instead, Sen. Leahy is pointing out yet another incident of Sen. Grassley’s twisting the truth about judicial nominees and the judicial nominations process in an attempt to cover for slowing down Senate business and ultimately the business of the federal courts. As Leahy says in his statement:
Those erroneous Record statements have me wondering whether I should be so accommodating to Republican scheduling demands given that they forget their demands in their efforts to avoid responsibility and blame others.