Do you know the team chant “Be Aggressive! B-E Aggressive! B-E-A-G-G … ”? I hummed it as I watched President Obama announce that he is simultaneously lining up three nominees for the U.S. Court of Appeals for the District of Columbia Circuit. This is an in-your-face response to Republican obstructionism. In other words, it’s totally unlike Obama, who has been especially slow to put up nominees for the appeals courts and the district courts. But at this moment in time, it is very much in his self-interest. The president needs these judges to cement his own legacy, since the D.C. Circuit is second in importance only to the Supreme Court.
Obama is also safeguarding the power the Constitution gives every president to select federal judges. It’s the Senate’s job to advise and consent, but that is not supposed to mean automatic stonewalling by the minority, which Republicans have done much of since Obama took office. It’s time to take the fight to them rather than sit back. Nominating three candidates at once makes the problem of judicial vacancies far more visible than it has been since Obama was elected. That should up the political price for GOP obstructionism. And it should also force Obama to put real political capital into shaping the courts. Plus this will be a great fight to watch—involving all the branches of government.
The D.C. Circuit had four open slots from 2006 (out of 11) until last month, when the Senate finally confirmed an Obama’s nominee, Sri Srinivasan, by a vote of 97–0. That came after the long and bitter filibuster of Obama’s first pick, Caitlin Halligan. With Srinivasan on the bench, there are four judges chosen by Democratic presidents, four chosen by Republicans, and six more senior judges who also hear cases. Five of those senior judges were chosen by Republicans (in fact, 15 of the past 19 vacancies have been filled by GOP presidents, according to Nan Aron of the liberal court-watching group the Alliance for Justice). The D.C. Circuit hears cases in panels of three. Because the senior judges pick up a sizable share of the workload, “almost 80 percent of the panels in 2013 were composed of exclusively or a majority of Republicans,” Moshe Marvit writes in Dissent. “The results of this partisan court are not surprising. Many of the D.C. Circuit’s recent decisions have skewed heavily to the right.”
“Republicans have effectively transformed the court, which now provides a second shot for Republicans to overturn and amend legislation and regulations, into an alternate route to defeat government regulations. What we’re witnessing is a spectacular power grab by conservative legislators.”
How has this happened? The D.C. Circuit includes committed conservative old-timers like Judge David Sentelle, and it also has three George W. Bush appointees—Judge Janice Rogers Brown, Judge Thomas Griffith, and Judge Brett Kavanaugh—who are also hard-core conservatives. Rogers Brown has hailed the supposed virtues of the Lochner era—the discredited period in the early 20th century when the Supreme Court struck down legislation that protected workers, including child labor laws. Here’s a classic line from Brown about her worldview: “Civil society, once it grows addicted to redistribution, changes its character and comes to require the state to feed its habit.”
Brown’s extreme views were clear when Bush chose her. Senate Democrats agreed to put her on the bench as part of a 2005 deal that staved off Republican threats to kill the filibuster. The basic compromise between the two sides was that senators agreed to only filibuster judicial nominees under “extraordinary circumstances.” The Democrats did invent the D.C. Circuit filibuster when they blocked the nomination of Miguel Estrada in 2003. And 11 appeals court nominations were left hanging when Bush left office. But Bush also succeeded in confirming 62 judges to the appeals courts and 261 judges to the district courts. Obama, by comparison, has 36 appellate judges and 155 district court judges so far. (The waiting time between Senate Judiciary Committee approval and a floor vote has vastly increased, but Obama also is also to blame for a slew of vacancies waiting for nominees.)
The upshot is this: Republicans both appoint and block more judges because they appreciate the power of the courts. Their base understands how much the third branch matters, from gun laws to abortion to curbing pollution to immigration and financial reform. Obama has been mostly passive and dilatory until now because the politics didn’t dictate otherwise. Now that he’s taken on the D.C. Circuit, he’s come up with three nominees who easily pass the bar as well-qualified jurists. They are not the lefty equivalents of Janice Rogers Brown but to varying degrees have liberal credentials.
The one with the most centrist record is Patricia Millett, a partner at Akin Gump who worked in the solicitor general’s office for both Clinton and Bush and has represented the pro-business—and brief-filing powerhouse—U.S. Chamber of Commerce. Cornelia Pillard—who goes by Nina—is a Georgetown law professor who worked for the NAACP Legal Defense Fund and won a feminist victory in the Supreme Court case that enabled women to enter the Virginia Military Institute. She has support from labor. As an academic, she also has a paper trail the right will surely scrutinize. The third nominee, Robert Wilkins, is a judge on the D.C. District Court, which means he has already been confirmed once, in 2010. In 1993, interestingly, Wilkins was the plaintiff in a suit brought by the ACLU alleging that the Maryland police were pulling people over for driving while black—searching and detaining them on the basis of race. The suit led to a settlement in which the state police agreed to collect data on traffic stops and make changes to address racial profiling. A judge ruled that the state wasn’t keeping its promise, and litigation continued until 2008.
To game out what happens next, here are three possibilities. First, Republicans could hang tough and filibuster all three of these people. I’m not sure how they can argue that they’re all “extraordinary,” but hey, their base will applaud whatever rationale they come up with. Obstructionism doesn’t have much mainstream appeal, though, so the senators from purple states, at least, should feel some heat. A second possibility: Republicans target one of the three (or maybe two, if the president seems to go soft) and let the others through. And the third option is that GOP stonewalling finally pushes Senate Majority Leader Harry Reid to smash the filibuster to bits, or at least blunt its power to kill the president’s judicial and Cabinet nominees. I’d say the second outcome is the most likely. But the third would be the best fireworks.
Correction, June 4, 2013: This article's photo caption, supplied by Getty Images, reversed the identifications of Cornelia Pillard and Patricia Millett. Millett is on the right, and Pillard is second from the left. (Return to the corrected caption.)