Federal Courts and Nominations

Senate Judiciary Committee Republicans: Hypocrisy, Revisionism and the D.C. Circuit

This morning, by a strictly party-line vote of 10-8, the Senate Judiciary Committee approved the nomination of Patricia Millett to the D.C. Circuit, sending it on to the full Senate for consideration after the recess.  No Republican Senator voiced any concern whatsoever with Ms. Millett’s qualifications to be a federal judge.  To the contrary, Senator Orrin Hatch (R-UT) specifically said, “I have no objection to her personally…I think she’s probably well qualified.”  This echoed the praise that Senator Ted Cruz (R-TX) had already lavished on Ms. Millett at her July 10 confirmation hearing.

So why all the “no” votes for a nominee Republicans admit is well-qualified?  Well, it’s pretty obvious.  Including the D.C. Circuit’s very active senior judges, Republican-appointed judges on that court have a sharp 9-5 majority, which they are using, in the words of Pulitzer Prize winning columnist and George Mason Professor Steven Pearlstein, to wage “judicial jihad against the regulatory state.”  As Pearlstein observed, “dysfunctional government has become the strategic goal of the radical fringe [on the political right]…Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.”

Of course, in voting against Ms. Millett today, Republicans did not own up to a desire to preserve their ideological stranglehold on the D.C. Circuit.   No, those who spoke joined in lockstep behind Ranking Member Charles Grassley (R-IA) to claim that the D.C. Circuit’s workload does not warrant any more judges.   Never mind that Senator Grassley and his colleagues were all too eager to confirm G.W. Bush nominees Janice Rogers Brown and Thomas Griffith to the D.C. Circuit when its workload was less than it is now.  We’ve previously exposed and addressed this partisan hypocrisy (e.g., here and here).

Today, Senator Hatch dredged up a letter written on July 27, 2006 – seven years ago—to Senator Arlen Specter (R-PA), then Chair of the Judiciary Committee, by Democratic Senators on the Committee, asking to postpone a hearing on the nomination of Peter Keisler to the D.C. Circuit.   According to Senator Hatch, the letter writers said that “no nominee to this court should be considered until the need for the judgeship is established.”

But that’s not what they said.   The 2006 letter was not written in a nominations vacuum, nor about the confirmation process generally.  To the contrary, and as Senator Hatch neglected to mention, the letter was written specifically about the nomination of Mr. Keisler to fill the 11th active seat on the D.C. Circuit; the letter questioned the need for filling that seat on the court, not any vacancy at all.   And, in this regard, the letter writers noted the prior opposition of Republican Senators to filling the court’s 11th seat, including during the Clinton Administration.   Today, only eight of the court’s active judgeships are filled.   That the court needs more than eight active judges was certainly not debated in 2006.   

Senator John McCain has said that President Obama’s three nominees to the D.C. Circuit deserve up or down votes.   As he noted, “elections have consequences.”  When the Senate returns in September, Ms. Millett should promptly be given such a vote.   

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