In his first term, Barack Obama became the first president in over fifty years to fail to confirm a single judge to the D.C. Circuit Court of Appeals, which is often called the nation’s “second highest court” and has served as something of a triple-A farm team to the Supreme Court. To the consternation of liberals, Obama seemed unwilling to invest his political capitol in pushing for judges when he had a large legislative agenda to enact. Walter Dellinger, a former Department of Justice official in the Clinton administration, said that Obama’s failure to confirm a judge to the D.C. Circuit in his first term was “an act of judicial-political malpractice that should be legendary."
Today’s nomination of three judges to the D.C. Circuit, complete with a Rose Garden speech, signals a new stage in Obama’s efforts to change the face of the federal judiciary. With Republicans comparing his efforts to FDR’s “court-packing plan,” the stage is set for a major showdown over the future of this court.
It’s about time. In their recent invalidation of recess appointments, the D.C. Circuit’s dominant conservatives, paradoxically, reminded people of their importance. While the court currently has four judges appointed by Democrats and four by Republicans, five of its six senior members were appointed by Republicans, which gives it a conservative tilt.
Obama’s belated effort to fill vacancies on the D.C. Circuit is different from filling vacancies another federal court. For years, the D.C. Circuit has served as a launching pad for turning skilled appellate attorneys into Supreme Court justices. In 2001, John Roberts, then a partner at the law firm of Hogan & Harston, was introduced to the nation in the Rose Garden when President Bush nominated him for a seat on the D.C. Circuit. Roberts was eventually confirmed and as Chief Judge of the circuit he noted that “when you look at the docket that you really see the differences between the D.C. Circuit and the other courts” with the focus on administrative cases involving the federal government in the D.C. Circuit.
In March, the administration failed to win the nomination of Caitlin Halligan after Republicans filibustered her. Halligan, the former solicitor general of New York, was attacked by Senate Republicans and the NRA for her work on a lawsuit against gun manufacturers. Her nomination was filibustered by Republicans on grounds that were incredibly spurious.
Rather than retreat from nominations, the White House decided to double down with a plan to nominate three judges to the court. First, they followed through on the nomination of Sri Srinivasan, a veteran of the solicitor general’s office under Bush and Obama. Rather than fight him, Republicans decided to let him go in order to help build their case against Obama’s ability to nominate judges to fill the other three vacancies on the court. All of the Republicans voted to confirm Srinivasan but Grassley used it as an opportunity to launch his Court Efficiency Act that would remove the remaining three slots from the court. With Srinivasan already being discussed for the Supreme Court, the Republican decision to abstain from attacking makes him an attractive candidate for the Supreme Court. It would be hard for Republicans to object to a nominee whom they recently confirmed for the D.C. Circuit on a 97-0 vote.
After the Srinivasan nomination, the White House has begun to make the case for its plan to nominate three judges for the D.C. Circuit. They argued that Senate Republicans were delaying nominations far more than Senate Democrats had done to George W. Bush’s nominees. When Grassley accused the president of court-packing, they correctly pointed out that Roosevelt was trying to set up new seats on the Supreme Court that the Congress had not authorized whereas Obama was only nominating judges for judgeships that already existed.
So, who are these nominees? On first blush, Republicans will be hard-pressed to find a way to object to all three nominations without appearing nakedly opportunistic.
- Cornelia Pillard, a professor at Georgetown Law School has had a distinguished career in appellate advocacy and as a scholar. She worked for the NAACP Legal Defense Fund and for the Department of Justice in the Clinton administration with positions in the Office of Legal Counsel and the Solicitor General’s office. She has argued an array of cases before the Supreme Court including United States v. Virginia, which allowed women to enter the Virginia Military Institute. Republicans may argue that her scholarship on feminism is political with its criticism of Sarah Palin’s “new maternalism,” but there could be a high political price to fighting a major defender of women’s rights because they don’t like her views on feminism.
- Patricia Ann Millett, a partner at the law firm of Akin & Gump, has argued over thirty cases at the Supreme Court. She served as an assistant to the Solicitor General from 1996 to 2007, and her work in both the Clinton and Bush administrations will make it difficult to portray her as too left-leaning for the court.
- Judge Robert Wilkins, on the District Court for the District of Columbia, has the benefit of already having gone through a confirmation hearing. As a young lawyer, Wilkins was pulled over by Maryland police for a speeding ticket and he challenged the stop because the police were explicitly targeting African-Americans in nice cars. His case, Wilkins v. Maryland State Police, helped to end racial profiling by police. As an appellate lawyer, he argued cases for the public defender’s office. While Republicans may try to depict him as too left-leaning, he served on George W. Bush’s commission to establish the National Museum of African-American History and Culture.
Obama’s decision to nominate three jurists at once signals to partisans that he is—finally—willing to fight. But it may also prove a smart way to navigate a confirmation process that has become absurdly baroque. Republicans will be hard-pressed to find an objection to one nominee that doesn’t actually bolster the case of another. While they may argue that Nina Pollard is too liberal, this would bolster the case for Millett with her service in the Bush administration. Similarly, if they object to the lack of judicial experience with Pillard or Millett, this will build the case for elevating Wilkins from the district to the appellate court. With the slew of nominees, Republicans will be forced to just argue against having any new judges on the D.C. Circuit.
Diversity—and political branding—also might help the nominees. The nominations of two of the nation’s top female appellate lawyers and an African-American judge will be tough for Senate Republicans to oppose at a time when the Republican Party is struggling to rebrand itself as more inclusive. While Republicans try to make a procedural argument about the number of judges on the court, the White House will have an opportunity to highlight its efforts to place more women and African-Americans on the bench.
Of course, logical calculations about judicial quality, or philosophical consistency—or even their party’s political self-interest—have never stopped members of Congress determined to have their way. So far, it looks like they are going to take on the big fight and the stakes are huge for Senate Republicans and the White House.
If Republicans hold up the nominations for the D.C. Circuit along with nominations for the EPA and the Consumer Finance Protection Bureau, this may turn into a larger fight over filibuster reform to break through Republican obstructionism. For now, the Republicans will have to decide whether they want to block all three candidates and risk the showdown or let some get confirmed and focus on some of them.
While Srinivasan prepares to take his seat at the court, and the rumors continue about his future at the Supreme Court, its unclear whether Pillard, Millett and Wilkins will be filling the other three seats on the D.C. Circuit—and in the process joining the roster of potential Supremes. But today, more than ever before, Obama looks ready to fight for them.
Sam Kleiner is a student at the Yale Law School.