Federal Courts and Nominations

Pillard Gets Hearing Before Senate Judiciary Committee

The top Republican on the Senate Judiciary Committee unveiled a new line of attack Wednesday against President Barack Obama’s three nominees to a powerful federal appeals court by using anonymous statements from current court judges to back up his assertion that additional jurists aren’t needed.


Sen. Charles E. Grassley of Iowa and every other Republican on the committee are sponsoring legislation (S 699) that would strip the Court of Appeals for the District of Columbia Circuit of three of its 11 judgeships and assign two of those positions to other circuits that they say are busier. The GOP senators have used the caseload argument to oppose Obama’s June 4 nomination of Patricia Millett, Cornelia T.L. “Nina” Pillard and Robert L. Wilkins to the D.C. Circuit.


During Pillard’s confirmation hearing Wednesday, Grassley announced he had sent a letter to current members of the D.C. Circuit asking them to weigh in on their caseload. He read anonymous responses from several judges who agreed with his position that extra jurists are unnecessary.


“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time,” Grassley quoted one judge as saying. “If any more judges were added now, there wouldn’t be enough work to go around.”


Grassley said another judge expressed similar sentiments.


“The court does not need additional judges for several reasons,” the judge said, according Grassley. “For starters, our docket has been stable or decreasing, as the public record manifests. Similarly, as the public record also reflects, each judge’s work product has decreased from 30-some opinions each year in the 1990s, to 20-some, and even fewer than 20, opinions each year since then.”


Grassley contended the judges’ statements clearly support his position that Millett, Pillard and Wilkins do not need to be confirmed. “Who is in a better position than the judges to make an assessment about the court’s workload and the need for additional judges?” he asked.


Tactic Decried


But Grassley did not indicate how many of the court’s judges responded to his letter, and his office declined to make the full responses it received available. The D.C. Circuit currently has eight active judges — split between four Democratic and four Republican appointees — as well as six senior judges who hear cases.


Grassley spokeswoman Beth Levine said the letter was sent to all active and senior judges. “Each of the responses we received indicated that additional judges were not necessary,” she said.


Committee Democrats argue that the D.C. Circuit, which is often called the second most-powerful court in the nation, needs more judges because of the complex national security and administrative law cases it hears.


A fact sheet provided by Democrats notes that the court “has exclusive or concurrent jurisdiction in cases involving the National Labor Relations Board, the Occupational Safety and Health Administration, the Federal Energy Regulatory Commission, the Federal Election Commission and the Federal Communications Commission.”


Chief Justice John G. Roberts Jr., an alumnus of the D.C. Circuit and Republican appointee, also has argued that the court’s docket sets it apart. The Judicial Conference of the United States, the policy-setting body of the federal courts, has not recommended reducing the D.C. Circuit’s 11 active judgeships.


Democrats appeared surprised Wednesday by Grassley’s disclosure of the judges’ remarks and did not immediately respond. More broadly, Judiciary Chairman Patrick J. Leahy, D-Vt., called Republican assertions about the court’s workload “misleading at best.”


One outside group that has been pushing for the confirmation of all three of Obama’s nominees called Grassley’s tactics “unseemly.”


“Neither the D.C. Circuit, nor the Judicial Conference, has publicly taken the position that these seats on the D.C. Circuit should not be filled,” Judith E. Schaeffer, vice president of the Constitutional Accountability Center, said in a statement.


“It is unseemly — and beneath the dignity of the judiciary and the Senate — for a sitting senator to poll members of the court and rely on anonymous responses by presumably ideologically aligned members of the court to support his position,” she added. “If Sen. Grassley wants the D.C. Circuit to weigh in, he should ask the court itself whether it has a position.”


Personalized Scrutiny


Republican senators on Wednesday also moved away from a generalized critique of Obama’s effort to add three new D.C. Circuit judges to a more-specific criticism of Pillard herself, a notable departure from their treatment of Millett.


At Millett’s July 10 confirmation hearing, Republicans relied primarily on the caseload argument to express their opposition. Sen. Ted Cruz, R-Texas, flatly told Millett, a veteran appellate attorney who has argued more than two dozen cases before the Supreme Court, that the controversy surrounding her is “unconnected to your personal background and qualifications.”


Cruz and other Republicans took a different approach with Pillard, a Georgetown University Law Center professor with a long record of academic and legal writings and affiliations with organizations including the NAACP and ACLU.


“The primary source we have are your academic records, and those writings to me suggest that your views may well be considerably out of the mainstream,” Cruz told her.


Cruz and Grassley, along with Republican Sens. Mike Lee of Utah and Jeff Flake of Arizona, pressed Pillard about her views on abortion, sex education, the treatment of religious organizations and other subjects.


Lee took exception to an argument Pillard made in a roughly two-decade-old Supreme Court amicus brief, in which he said she inappropriately compared a group of anti-abortion protesters to members of the Ku Klux Klan. Pillard responded that her brief had made a legal argument based on a law that was originally written to address the white supremacist organization but was not to be read as making the comparison that Lee described.


Flake asked Pillard about a footnote she included in an article about sex equality in which she “seemingly agreed” with an author who was critical of the U.S. Constitution’s protections of individual rights.


“I don’t adopt that,” she responded. “I cited several things in that article as illustrative of different points.”


Sen. Richard Blumenthal, D-Conn., who chaired the hearing, concluded it by arguing that Pillard should be judged on her qualifications, not on footnotes to dated written materials. Leahy pointed out that Pillard has been rated highly by the American Bar Association and has argued nine cases before the Supreme Court.

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