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 response to media reports on an agreement worked out by Majority Leader Harry Reid and a portion of the Republican caucus, People For the American Way Vice President Marge Baker issued the following statement.
“Today’s agreement is a big win for Americans who want a government that works. Thanks to this agreement, critical positions in our government will finally be filled with appointees confirmed by the full senate. Senator Reid should be applauded for holding Republicans’ feet to the fire and standing up to the relentless GOP obstruction that has tied our government into knots.
“While I’m glad that some Republicans recognize that their party’s efforts to exploit partisan gridlock have gone too far, there’s no question that too many nominees have had to wait far too long for a simple up or down vote. It’s good news that Republicans have decided to end their years long temper tantrum on these nominees, but it’s only a first step.
“Currently, three of President Obama’s nominees to the DC Circuit are pending before the Senate Judiciary Committee. And although some Republicans have already signaled that all three deserve up or down votes, others are laying the groundwork to block votes not because they oppose the nominees themselves, but because they oppose the President who named them.
“In the coming months, we’ll continue to push for Senate votes on nominees and against Republican senators playing politics with our courts.”
Journalist Andrew Cohen, writing for the Brennan Center for Justice, explains how attempts to portray today’s Republican filibusters as routine “tit-for-tat” maneuvers are misleading:
By trying not to be partisan, at least in this area of political coverage, we journalists are in many ways becoming more partisan than we fear. James Fallows, the author and longtime correspondent at The Atlantic, has been preaching for years now about “false equivalence” in reporting about the Senate’s current gridlock. He has called out reporters and editors, producers and television hosts, headline writers and analysts, for their continuing failure to call it like it really is when it comes to these Senate votes. For example, on Wednesday, in the wake of the background check vote, which “passed” the Senate by a vote of 54-46 but effectively “failed” because of the threat of a filibuster, Fallows again explained the concept. He wrote:
Since the Democrats regained majority control of the Senate six years ago, the Republicans under Mitch McConnell have applied filibuster threats (under a variety of names) at a frequency not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any significant legislation or nomination. The goal of this strategy, which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine. As part of the "making it routine" strategy, the minority keeps repeating that it takes 60 votes to "pass" a bill — and this Orwellian language-redefinition comes one step closer to fulfillment each time the press presents 60 votes as the norm for passing a law.
News consumers, in other words, are led to believe that what is happening is just “politics as usual,” tit-for-tat, part of the murky vote-counting calculus that has always been a part of the Senate’s rules. But there is now ample evidence to suggest that this tactic has fundamentally changed the way Congress works. In 2009 alone, the Brennan Center’s Diana Kasdan told me last week, “there was double the number of filibusters that occurred in the entire 20-year period from 1950-1969, when they were used repeatedly and notoriously to block civil rights legislation.” In other words, today’s abuse of the filibuster is extraordinary. Yet Fallows gives many examples — actual headlines, probably hundreds of them over the years — in which journalists have refused or failed to properly communicate this to their audience. Without adequate context and perspective about what is happening in the Senate, the American people are hampered in how quickly they can force their elected officials to change (or, more accurately, to change their elected officials).
In fact, as we have reported here, today’s GOP has taken Senate obstruction to an extraordinary new level.
Today, the Senate Judiciary Committee holds a hearing on the nomination of Sri Srinivasan to sit on the Court of Appeals for the D.C. Circuit. Srinivasan, who was first nominated ten months ago yet is just now receiving a hearing, is the latest Obama judicial nominee caught in the web of Senate obstruction. Last month, Republicans blocked the nomination of Caitlin Halligan to a seat on the same court, despite her impeccable qualifications and strong bipartisan backing. Some important facts to keep in mind during and after today’s hearing:
Our federal courts are suffering because of entrenched Republican obstruction. Because of both public and silent Republican filibusters, President Obama’s appeals court nominees have been forced to wait an average of 153 days between Judiciary Committee approval and a yes-or-no vote from the Senate. At this point in Bush’s presidency, the average wait for confirmed appeals court nominees was just 37 days. The foot-dragging is unrelated to who the nominee is – even consensus nominees with the strong support of their Republican home-state senators have been forced to wait for months through active or silent filibusters before the Senate is finally allowed to hold a confirmation vote. This pointless obstruction, which is echoed at the district court level, has led to persistently high vacancy rates and longer waits for Americans seeking their day in court.
WASHINGTON – The Senate confirmed Judge Patty Shwartz of New Jersey to the Third Circuit Court of Appeals in a 64 to 34 vote today, over one year after her nomination was sent to the Senate floor for a vote. Marge Baker, Executive Vice President of People For the American Way, released the following statement:
“The absurd delay of Patty Shwartz’s confirmation is emblematic of a Republican Party determined to obstruct the American people’s business at all costs. Judge Shwartz is indisputably qualified and supported by New Jersey’s legal leaders and elected officials from both parties, including Gov. Christie and both of the state’s U.S. senators. The only thing stopping the Senate from voting on her nomination was a 13-month Republican silent filibuster supported by flimsy excuses.
“The delay in confirming Judge Shwartz is sadly not unusual. President Obama’s confirmed circuit court nominees have been forced to wait an average of 153 days from Judiciary Committee approval to floor vote. By contrast, George W. Bush’s circuit court nominees at this point in his presidency waited an average of just 37 days. This deliberate slow-walking of nominees is obstructing Senate business, exacerbating a vacancy crisis in our federal courts, and deterring highly qualified individuals from putting themselves forward to serve on the federal bench.
“This summer, two more Third Circuit judgeships will become vacant. We hope that Senate Republicans will allow these vacancies to be filled in a timely manner.”