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 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.
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: