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:
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.”
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:
Garrett Epps writes today in The Atlantic about how the D.C. Circuit Court of Appeals, still dominated by far-right George W. Bush nominees, has been instrumental in “the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.”
We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.
We posted an infographic yesterday that shows just how ideologically skewed the D.C. Circuit is. George W. Bush made a concerted effort to pack the court with judges who shared his right-wing ideology (including John Roberts, who went on to be one of the top two most pro-corporate Supreme Court Justices in the past 65 years). In contrast, President Obama is the first president since Woodrow Wilson to not place a single judge on the court during his full first term.