President Obama fired a warning shot Tuesday in the battle over Senate confirmations: He nominated three new judges to the powerful federal appeals court in Washington, and he challenged Senate Republicans not to stand in their way.
Obama complained about procedural roadblocks that have tied up many of his previous nominees — sometimes for years.
But Republicans are looking to sidestep the confirmation fight by downsizing the appeals court itself.
When the president nominates a judge, he usually does so quietly, via press release. On Tuesday, though, Obama was looking to make some noise. He stepped in front of the TV cameras in the White House Rose Garden, with not one but three nominees — all with top ratings from the American Bar Association.
“These are no slouches. These are no hacks. These are incredibly accomplished lawyers by all accounts,” Obama said.
The nominees are: Patricia Millett, a veteran appeals lawyer who worked in both the Clinton and George W. Bush administrations; Cornelia Pillard, a law professor at Georgetown University; and Robert Wilkins, a federal district judge who won unanimous confirmation in 2010.
“There’s no reason, aside from politics, for Republicans to block these individuals from getting an up-or-down vote,” the president said.
But politics is never far from the surface, especially when it comes to filling spots on the Court of Appeals in Washington — second only to the U.S. Supreme Court in its effect on government policy.
Russell Wheeler, who tracks judicial nominations at the Brookings Institution, says these three nominees would shift the balance on the D.C. Circuit. Nearly two-thirds of the full-time and senior judges now on the D.C. court were appointed by Republican presidents.
“This court is seen as fairly conservative for the most part in the decisions it renders, especially those involving administrative agency appeals — for example, from the Environmental Protection Agency, from the [National Labor Relations Board],” he says. “And clearly the administration’s regulatory agenda is running into some roadblocks in this court.”
Obama noted that one of the seats on the D.C. appeals court has been vacant since 2005, when John Roberts, now chief justice, was promoted to the Supreme Court. Senate Republicans kept one of the president’s earlier nominees in limbo for 2 1/2 years, until Caitlin Halligan finally withdrew her nomination earlier this spring.
“Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote,” Obama said.
By announcing these new nominees all at once, Obama is essentially daring Senate Republicans to raise objections to all three.
But the GOP may have a different approach. Instead of trying to find fault with the nominees, Senate Republican leader Mitch McConnell asked Tuesday whether that court really needs any additional judges.
“I think the issue, if there is one, with regards to the D.C. Circuit, is the question of whether this circuit court, which is apparently less busy than all but one circuit courts in the nation, needs to have a full complement of judges,” McConnell said.
Iowa Sen. Chuck Grassley — the ranking Republican on the Judiciary Committee — has proposed cutting the size of the appeals court from 11 full-time judges to eight.
Some Republicans have even accused the president of trying to “pack” the court — a charge that Obama laughed off in the Rose Garden.
“When a Republican was president, 11 judges on the D.C. Circuit Court made complete sense,” he said. “Now that a Democrat is president, it apparently doesn’t. Eight is suddenly enough.”
When he got a few laughs from the audience, he added: “People are laughing because it’s obviously a blatant political move.”
The president is mounting his own political moves. His announcement was accompanied by numerous campaign-style endorsement letters, and the White House is reaching out to liberal groups in hopes of ginning up more public pressure on the Senate.
The judicial nominations could even provide an opening for Democrats to change the longstanding Senate filibuster rules, which have allowed Republicans to block nominations, even when they are supported by a majority of senators.
Brookings’ Wheeler says despite those obstacles, the president has managed to put his stamp on federal appeals courts around the country.
“Obama inherited a Court of Appeals in which 60 percent of the active judges had been appointed by Republican presidents, 40 percent by Democratic presidents,” Wheeler says. “That figure is now 50-50.”
And Wheeler says over the next 3 1/2 years, that ratio should move further in the Democrats’ direction, unless the process of confirming judges breaks down altogether.