Federal Courts and Nominations

Obama to Nominate Three Lawyers to D.C. Circuit

By Todd Ruger 


President Barack Obama on Tuesday will simultaneously nominate three lawyers for the U.S. Court of Appeals for the D.C. Circuit, an aggressive move to fill vacancies on a key appellate court that will further flame tension between the White House and Congress over judicial nominations.


A White House official said the nominees are Patricia Millett of Akin, Gump Strauss Hauer & Feld; Cornelia “Nina” Pillard, a former Justice Department lawyer who is now a Georgetown University Law Center professor; and U.S. District Judge Robert Wilkins in Washington, a former Venable partner who was unanimously confirmed to the trial bench in 2010.


The announcement will be made at 10:15 a.m. in the White House’s Rose Garden, the official said. Millett and Pillard have extensive experience before the U.S. Supreme Court, and work histories that are unlikely to be too controversial during the Capitol Hill nomination process.


Pillard declined to comment. A member of Wilkins’ chambers staff said the judge could not comment. Millett could not immediately be reached for comment.


Leaders of conservative groups that closely track the judicial nomination process have said that any opposition to D.C. Circuit picks will much more likely to be about the court itself than the personalities and characteristics of any nominee. Leading Republicans, for instance, contend the D.C. Circuit does not need another judge based on annually declining case loads.


Three nominations at once is a major shift in the White House strategy when it comes to the D.C. Circuit. Obama only made two nominations to the court during his first term. Obama’s first nominee for the court, Caitlin Halligan, withdrew from consideration in March after Republicans twice blocked a confirmation vote. Her nomination languished for almost three years.


Obama’s next pick, principal deputy solicitor general Sri Srinivasan, was confirmed to the court on May 23, the first new judge in seven years for the 11-member panel. “The three remaining vacancies must be filled, as well as other vacancies across the country,” Obama said in a statement at the time.


Obama was personally involved in the confirmation push for Srinivasan, a former O’Melveny & Myers appellate partner. Progressive interest groups such as the American Constitution Society have pressed the White House and Senate Democrats to be more aggressive in filling slots on appellate benches—particularly the D.C. Circuit.


The president of the progressive Constitutional Accountability Center, said the three simultaneous nominations are a direct response to the “audacious move” by Republicans to obstruct nominations to the D.C. Circuit. 


“The announcement of President Obama’s decision today to nominate three highly qualified individuals to the D.C. Circuit is a watershed moment for this president and the future of this critical court,” Doug Kendall said in a statement.


The court is often referred to as the second most important in the country based in part on the number of regulatory and administrative law cases the court hears. Rulings can have national impact.


Srinivasan’s vote sparked a battle of words on the Senate floor between Senate Majority Leader Harry Reid (D-Nev.), who said and Minority Leader Mitch McConnell (R-Ky.), and talk that Democrats could change the Senate rules to prevent Republicans from blocking these new D.C. Circuit nominees.


Obama’s push for three at once could find major opposition from Senate. Critics have called the planned move “packing the court.” Senate Republicans including Chuck Grassley (R-Iowa) and Senator Mike Lee (R-Utah) are pursuing legislation that would strip those three judgeships from the D.C. Circuit and redistribute two of them to other circuits. The proposal indicates Republicans would strongly oppose any more Obama nominees for the D.C. Circuit.


Millett heads Akin Gump’s Supreme Court practice and co-heads the firm’s national appellate practice. She was once a candidate for a slot on the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. She has been trading back and forth with Arnold & Porter partner Lisa Blatt for the title of the woman with the most oral arguments before the Supreme Court. Currently Blatt is ahead by one, with 33.


Millett was named to The National Law Journal list of 100 Most Influential Lawyers in America this year, and was named by Washingtonian magazine as one of Washington’s 100 Most Powerful Women in 2012.


Millett has been involved in high-profile cases in the Supreme Court. She won U.S. v. Stevens in 2010, representing a man who was convicted for selling animal crush videos. The court struck down the law on First amendment grounds, 8-1. Previously, she was an assistant solicitor general who earned a commendation from the Environmental and Natural Resources Division in 2005, according to her firm biography.


Pillard teaches civil procedure and constitutional law at Georgetown and is faculty co-director of the Supreme Court Institute, a non-partisan project that assists lawyers from around the country in preparing for Supreme Court arguments, according to her professor biography.


She has briefed more than 25 Supreme Court cases and argued nine before the court. Her biography highlights Litigation highlights include United States v. Virginia in 1996, which opened the Virginia Military Institute to women, and Nevada Dept. of Social Svcs. v. Hibbs in 2003, which sustained Family and Medical Leave Act rights against constitutional challenge.


Pillard clerked for Judge Louis Pollak, a Carter nominee. Previously, she was a fellow at the American Civil Liberties Union and litigated individual and class-action racial discrimination cases and appeals at the NAACP Legal Defense and Education Fund, Inc.


Wilkins, a former white-collar litigator at Venable and a former D.C. public defender, has served on the trial bench in Washington since 2010. He has connections to Obama and other Democrats. The relationships were illustrated in the pending criminal case against former Rep. Jesse Jackson Jr. of Illinois. Wilkins ultimately recused.


At Venable, Wilkins represented clients in bribery cases, grand jury subpoena investigations and patent infringement suits. He is a founding member of the D.C. Access to Justice Commission. Legal Times in 2008 named Wilkins as one of Washington’s greatest 90 lawyers in the past three decades. He was also the lead plaintiff in a landmark racial-profiling suit that stemmed from a traffic stop in 1992 in Cumberland, Md.

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