Federal Courts and Nominations

D.C. Circuit Nominations a Defining Moment for Obama

By Todd Ruger


President Obama used the announcement of three nominations to a key appeals court Tuesday to strike a new, more aggressive tone. The move ultimately could determine the size of the imprint his presidency leaves on the nation’s courts.


Obama’s formal announcement of his nominees for the U.S. Court of Appeals for the D.C. Circuit symbolized a White House more dismissive of Republican opposition and a president more willing to get involved personally in the fight, according to Washington lawyers who follow federal judicial nominations.


Obama chose the Rose Garden to personally make the announcement instead of the usual route—a press release. He was flanked by the three D.C. Circuit nominees—Patricia Millett, Cornelia Pillard and U.S. District Judge Robert Wilkins. And he took a less-than-bipartisan tone, chiding Republicans for delaying votes on judicial candidates and, in some instances, blocking nominations.


Doug Kendall, president of the progressive Constitutional Accountability Center, said Obama long wanted to turn down the temperature on the politics of judicial nominations. “I think he tried through the first term to make that a reality,” Kendall said. Now, he said, Obama “is fed up with the Senate’s treatment of his nominees.”


An intensified fight over judicial nominations could affect more than just the makeup of the D.C. Circuit; it could risk a larger battle over judicial appointments including to the U.S. Supreme Court pick, appellate lawyers and observers of nominations politics said.


It risks prompting Republicans to say “we’re just not going to play ball with him at all and we’re just going to look for an excuse to not confirm judges,” said Russell Wheeler, a Brookings Institution fellow who closely tracks judicial nominations.


The push comes at a time when the makeup of active judges on the nation’s circuit courts has reached a tipping point. After the Senate’s confirmation of Sri Srinivasan to the D.C. Circuit last month—the first appointment to that court in seven years—the number of Democratic-and Republican-appointed judges are split evenly, Wheeler said.


The question: “Is Obama going to be able to put an imprint on the courts of appeals, and I think that’s still up in the air,” Wheeler said.


If Republicans dig in their heels, a Senate battle could slow confirmation for all judicial nominees, Washington lobbyist Vincent Eng of Veng Group said. He has carved out a niche advocating for judicial candidates in the Senate.


“As history has shown, when the Senate Republicans target a nominee of the president, we tend to see a slowing down of the whole process,” Eng said. He hoped that doesn’t happen, but said: “It wouldn’t surprise me.”


At the same time, putting forward three nominees at the same time could help their chances. “When you have three individuals of such high esteem, the Senate can’t deny confirmation on all of them,” Eng said. “I think, historically speaking, getting all three will be extremely difficult. We’ll see if the administration can get one.”


Senate Majority Leader Harry Reid has even raised the possibility of changes to Senate rules on the filibuster to prevent Republicans from blocking nominees. Republicans filibustered Obama’s first nominee to the D.C. Circuit, Caitlin Halligan, for almost three years. She withdrew in March, and Obama cited her in his remarks in the Rose Garden.


“Nobody suggested she was not qualified to serve on the court,” Obama said. “If Caitlin had gotten a simple up or down vote before the full Senate, I am confident she would have been easily confirmed.”Instead, “for two and a half years, Senate Republicans blocked her nominations. It had nothing to do with Caitlin’s qualifications. It was all about politics.”


Carter Phillips, chairman of Sidley Austin’s executive committee, said he expects Obama’s three nominations to die in the Senate. “It’s pretty clear to me that the Republicans have their heels dug in,” he said. “Unless the Democrats are prepared to kill the filibuster rule or modify it, I don’t think these will ever move.”


If the nominations fail, Phillips said, it wouldn’t harm Obama’s broader legacy when it came to the courts. Srinivasan was confirmed after Obama failed multiple times to get Halligan through the Senate, he noted.”It’s not as if that stigma has somehow weakened him in any sense. I think if these three just sit there, he’s in the same boat as every president since Clinton.”


On the other hand, Theodore Boutrous Jr., co-chairman of the appellate and constitutional law practice at Gibson, Dunn &Crutcher, said the presidentseemed to “lay out a marker and say, ‘I’m going to nominate qualified people—there’s no basis for not confirming them other than pure politics.'”


He continued: “It’s easy to be pessimistic, given the way some of these hearings have gone and the process has gone. But I think maybe at this point, everyone will take a look and say, we can’t go on like this. It doesn’t bode well for either side of the political spectrum if the party that’s not in control of the presidency balks at nominees at their caliber. Having three at once puts the issue front and center.”


Millett, Pillard and Wilkins didn’t comment during the Rose Garden announcement, and Obama took no questions from reporters.


Attorney General Eric Holder Jr. was spotted in the crowd. Also present were several members of the Senate Judiciary Committee, including senators Patrick Leahy (D-Vt.), the committee chairman, Sheldon Whitehouse (D-R.I.) and Chris Coons (D-Del.)


Political flashpoint


The D.C. Circuit is a flashpoint for judicial nominations. Senate Republicans have said the three vacancies on the 11-judge court need not be filled because the sitting judges can handle the workload. Senator Chuck Grassley (R-Iowa) has introduced a bill to strip the three positions from the D.C. Circuit.


“It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda,” Grassley, the ranking Republican on the Senate Judiciary Committee, said late Monday, after word of Obama’s plan broke.


On Tuesday, Obama repeated an oft-said point—that the D.C. Circuit is regularly considered the second most important court in the country because of a case load that includes national-security disputes, campaign finance cases and worker rights. “The court’s decisions impact almost every aspect of our lives,” Obama said.


There are eight active judges on the bench, including Srinivasan, who has not been sworn in yet, giving it a 4-4 split between jurists appointed by Republican and Democratic presidents. Three of the eight active judges are women.


Chief Judge Merrick Garland and judges Judith Rogers and David Tatel joined under President Bill Clinton. Judges Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith were appointed by President George W. Bush. Judge Karen LeCraft Henderson became a circuit judge in 1990.


The even split, however, doesn’t take into account the role that senior judges play on the D.C. Circuit. Six senior judges regularly sit on hearing panels and write opinions. Only one, Judge Harry Edwards, was appointed by a Democrat. (Edwards, a former chief judge on the D.C. Circuit, was appointed by President Jimmy Carter in 1980.)


The Rose Garden setting may have been a nod to liberal groups who have long wanted Obama to make a grand announcement about judicial nominations. President Bush in May 2001, for instance, announced his first 11 appellate court nominations in a ceremony at the White House.”I think having the Rose Garden event was very symbolic of saying, ‘This is going to be my fight and I’m going to be invested in this,’ ” Eng said.


Obama urged the Senate to act swiftly on the three D.C. Circuit nominees. He scoffed at the notion he was “packing” the appeals 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,’ ” Obama said. “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.”

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