On Wednesday, July 10, at 10:00 AM, the Senate Judiciary Committee is scheduled to hold a hearing on President Obama’s nomination of Patricia Millett to the D.C. Circuit, where three of 11 authorized judicial seats now sit empty.  On the merits, there can’t possibly be anything controversial about this nomination.  Ms. Millett is one of the country’s most accomplished appellate advocates; she has argued nearly three dozen cases in the U.S. Supreme Court, even more in the lower courts, and served with distinction in the Solicitor General’s office during Republican as well as Democratic Administrations.  Indeed, her nomination has the support of such conservative luminaries as former Solicitors General Ken Starr, Ted Olson, and Paul Clement.

So will Wednesday’s hearing be smooth sailing for Millett?  Possibly not, given that the Judiciary Committee’s Ranking Member, Charles Grassley (R-IA), appears bent on keeping President Obama from filling the D.C. Circuit’s three vacancies, no matter how well-qualified the nominees.  He has made this clear through a bill to eliminate these three seats from the D.C. Circuit, claiming that the court’s workload does not warrant 11 active judges. 

But particularly given Senator Grassley’s votes to confirm President George W. Bush’s nominees to the 10th and 11th seats on this court when its workload per authorized judge was less than it is now, Senator Grassley’s court-gutting proposal is an obviously partisan and hypocritical move to prevent a President of the other party from filling vacancies on this important court.  It has justifiably been criticized as such, including by Senator Grassley’s home state paper, the Des Moines Register.  Moreover, Senator John McCain (R-AZ) has stated that President Obama’s nominees to the D.C. Circuit deserve up-or-down votes, and Senator Susan Collins (R-ME), herself a co-sponsor of the Grassley bill, recently announced that she would consider the nominees on the merits.  

Given how much Senator Grassley seems to like numbers, it’s also worth noting that since the Senator first announced his bill, the Administrative Office of the U.S. Courts has published data showing that the D.C. Circuit’s caseload has increased since the last time such numbers were released.  According to the most recent data, as of December 31, 2012, the D.C. Circuit had 1,419 appeals pending, up from 1,315 on September 30, 2012.   In 2005, when Senator Grassley voted to fill the 10th and 11th seats on the D.C. Circuit with Bush nominees Janice Rogers Brown and Thomas Griffith, there were 1,313 appeals pending.

The numbers, which have always shown the hypocrisy of Senator Grassley’s proposal, show it now even more.  So will Senator Grassley finally be too embarrassed to keep pushing what is actually a mass filibuster by another name?  Will he at least follow Senator Collins’s lead, and consider the nominees on the merits?  We’ll certainly have a better sense of things after Wednesday.  In any event, let’s hope that more of Senator Grassley’s colleagues see through the partisan obstruction and understand that, as Senator McCain said, “elections have consequences,” and recognize that nominees as highly-qualified as Ms. Millett and President Obama’s two other nominees to the D.C. Circuit, Nina Pillard and Judge Robert Wilkins, deserve to be considered on their merits.