Federal Courts and Nominations

Judicial Confirmation Clash Looms Over Obama’s Nominees

By James Rowley & Greg Stohr


U.S. lawmakers are headed for a new showdown over President Barack Obama’s judicial nominations, as Senate Democratic leaders began a push to fill vacancies on a court that referees some of the nation’s biggest business cases. 


Obama wants to reshape the U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the country’s second-highest court. Republicans say he’s trying to “pack” the panel with nominees sympathetic to his regulatory agenda. Democrats argue that Republicans are trying to deny Obama the confirmation votes they routinely gave to President George W. Bush. Senate Majority Leader Harry Reid is ready for a fight. 


“The nation is watching for a sign that the Senate can function efficiently,” Reid said on Oct. 28 as the Senate returned to Washington after voting to end a 16-day government shutdown. “It is time to show the American people how well and how quickly the Senate can work.” 


At stake is the future of a tribunal that can serve as a steppingstone to the Supreme Court. Chief Justice John Roberts served on the D.C. Circuit as did Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg. Two other chief justices, Warren Burger and Fred Vinson served there as well. 


Among the cases being reviewed by the court is one on the Federal Communications Commission’s “net neutrality” rules requiring Internet-service providers to treat all traffic equally. The court — which has three vacancies and where Republicans now have an edge — also would probably rule on the administration’s proposal to limit carbon-dioxide pollution from power plants. 


Favorable Fight 


Reid, a Nevada Democrat, has scheduled procedural votes that would allow Senate consideration of several nominations for judicial and executive posts and overcome a filibuster, a delaying tactic the Republicans are threatening. 


Filling the vacancies is “a favorable next political fight” for Reid, because Republicans would only reinforce his charge that they’re being obstructionists if they try to block the nominees, said Doug Kendall, president of the Constitutional Accountability Center, an advocacy group. The group backs the confirmation of Washington lawyer Patricia Millett, whose nomination to the D.C. Circuit the Senate will debate this week.


Millett’s nomination is being considered along with Obama’s choices for other posts. These include Democratic Representative Mel Watt’s appointment to be the regulator of government-chartered mortgage companies Fannie Mae (FNMA) and Freddie Mac. The Senate last night confirmed the nomination of Tom Wheeler, a former cable industry lobbyist, to be the next FCC chairman. 


Lifting Hold 


Senator Ted Cruz, a freshman Texas Republican, had held up Wheeler’s nomination while he sought a commitment that the FCC won’t regulate political speech. Cruz yesterday dropped his opposition to the appointment. 


At Millett’s July 10 Senate Judiciary Committee hearing, Cruz praised the lawyer, calling her “a talented and skilled appellate advocate,” who has “earned high respect in the Supreme Court bar.” 


Nonetheless, he told her she was part of a plan by Obama and Senate Democrats to “pack the court” to “protect the regulations coming from this administration” from being struck down by the D.C. Circuit. 


There’s “a broader context irrespective of your fine qualifications,” Cruz said, because the D.C. Circuit has become “a battleground for both sides for the politicization of judicial nominations.” He ticked off the names of several people he said are equally qualified Republican nominees, and accused Democrats of blocking them for partisan reasons. 


Republican Advantage 


“If there isn’t a legitimate judicial need, then it’s fair to question why the nominations are being made at this time,” said Carrie Severino, chief counsel of the Washington-based Judicial Crisis Network, which has opposed many Obama nominees. Obama’s effort to fill three vacancies on the court “clearly points to the fact that the president is trying to use it to insulate his agenda from judicial review,” she said. 


The court’s current lineup gives Republicans an advantage even though its full-time judges include four appointees from each party. That’s because six senior judges also hear cases, and five of them were selected by Republican presidents. 


The party breakdown can make a difference when three-judge panels consider high-stakes regulatory cases. When the D.C. Circuit threw out an Environmental Protection Agency rule that would curb emissions from coal-fired power plants in upwind states, the vote was 2-1, with the lone Democratic appointee in the minority. 


Nuclear Waste 


Similarly, two Republican appointees constituted the majority when the court told the Nuclear Regulatory Commission to continue reviewing a license application for a nuclear-waste dump at Nevada’s Yucca Mountain. The ruling was a setback for efforts by the Obama administration and Reid to shut the facility. A Democratic appointee dissented. 


Three Republican appointees voted to invalidate recess appointments to the National Labor Relations Board, a case that is now before the U.S. Supreme Court. 


During almost five years in office, Obama has placed only a single judge, Sri Srinivasan, on the D.C. Circuit. Srinivasan was confirmed in May after Obama’s first nominee, Caitlin Halligan, was blocked by Senate Republicans. They objected to Halligan’s work as New York State’s solicitor general on a lawsuit against handgun manufacturers. 


In June, Obama also asked the Senate to confirm Georgetown University Law Professor Nina Pillard and U.S. District Judge Robert Wilkins, as well as Millett, for the vacancies on the appeals court. 


‘Political Obstruction’ 


At a ceremony to introduce the three nominees, Obama complained that “my nominees have taken three times longer to receive confirmation votes” than did those of his Republican predecessor, Bush. “This is not about principled opposition. This is about political obstruction.” 


Senator John Cornyn of Texas said yesterday Republicans “intend to stop” Obama’s “court-packing plan for the D.C. Circuit.” The “last thing we need to do in a time when money is tight” is “throw more money at unneeded judges” to “tilt that court ideologically in a way that favors the big-government agenda of the Obama administration,” said Cornyn, the Republican whip. 


Senate Judiciary Committee Chairman Patrick Leahy said the argument that D.C. Circuit judges are underworked “doesn’t pass the giggle test.” The Vermont Democrat also told reporters he “can’t think of anybody more qualified” than Millett. 


While Leahy didn’t directly answer the question of whether he had the votes to defeat the filibuster, he said he didn’t believe the parliamentary tactic would succeed. 


Longtime Battleground 


The Washington appeals court has been a political battleground for decades. 


Democrats prevented a vote on Roberts, when he was first nominated to the D.C. Circuit in 1992 by President George H.W. Bush. Roberts was nominated again by the second President Bush in 2001, winning confirmation only after Republicans took control of the Senate in 2003. Bush elevated Roberts to the Supreme Court two years later. 


Democrats stopped two other Bush nominees: Miguel Estrada, an appellate lawyer once seen as a possibility to become the first Hispanic on the Supreme Court, and Peter Keisler, who ran the Justice Department’s civil division. 


Republicans blocked a vote on Elena Kagan after President Bill Clinton nominated her to the D.C. Circuit when they controlled the Senate in 1999. Obama appointed Kagan to the Supreme Court in 2010. 


At the June ceremony, Obama acknowledged that both parties share blame for the political conflict over judicial nominees. 


In 2007, then-Senator Obama joined two rivals for the 2008 Democratic presidential nomination — Senators Joe Biden and Hillary Clinton — in supporting an unsuccessful filibuster against one of Bush’s appellate court nominations. 


Asked that day whether Republicans might use his vote against his nominees if he became president, Obama said: “I guarantee you, regardless of which way I voted, Republicans will try to block judges.”

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