President Barack Obama on Tuesday threw down the judicial gauntlet by nominating a ticket of three candidates for what’s often considered the second most-important court in the country.
In an aggressive bit of political stagecraft, Obama took to the White House Rose Garden to announce two women and an African-American man as his selections for the U.S. Court of Appeals for the District of Columbia Circuit. If confirmed, his nominees potentially could oversee nearly every facet of the federal government. If they’re not confirmed, they will become political ammo for Democrats to fire at the Republicans.
“The judges on the D.C. circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy, from questions of campaign finance to workers’ rights,” Obama said. “In other words, the court’s decisions impact almost every aspect of our lives.”
But the nominees, Georgetown University law professor Cornelia T.L. Pillard, appellate attorney Patricia Ann Millett and U.S. District Judge Robert L. Wilkins, also share something beyond being Harvard Law School graduates who have each been tapped for a powerful post.
Each is also now part of a larger confirmation battle that’s grown with every year and which is certain to be exacerbated by the way in which their nominations were rolled out all at once.
Though the Senate confirmed Obama’s last choice for the D.C. appellate court, Kansas native Sri Srinivasan, by a 97-0 margin, the three new nominees appear to face a rockier road. Even before the president made the three new nominees public, key Republicans were declaring they’d rather shrink the D.C. circuit, which is authorized for 11 members but currently has eight active-duty judges.
“My take is every slot on this circuit does not need to be filled,” said Republican Sen. Jeff Sessions of Alabama, a senior member of the Senate Judiciary Committee. “At some point you don’t need to be approving judges that don’t have enough work to do.”
Another senior Republican on the panel, Sen. Orrin Hatch of Utah, added that Obama’s nomination of three individuals at once “is a political thing more than anything else, just to shove it to Republicans and also to get off” more politically painful topics.
In time, Obama’s nominations also could rekindle a fight in the Senate over revamping the chamber’s 60-vote threshold to end a filibuster, a method by which senators have been able to block or stall confirmation of judicial nominees and presidential appointees and delay or kill legislation.
Frustrated by Republican filibusters, Senate Majority Leader Harry Reid, D-Nev., had threatened to employ a so-called “nuclear option,” a parliamentary procedure in which the Senate, by majority vote, would deem the filibuster of judicial nominations unconstitutional.
Reid backed off his threat in January after the Senate reached an agreement to keep the 60-vote filibuster threshold, while streamlining some of the chamber’s other procedures. Senate Minority Leader Mitch McConnell, R-Ky., reminded Reid on Tuesday about the January filibuster compromise.
“The most important currency of the realm here in the Senate is your word,” McConnell said on the Senate floor. “My point is a commitment has been made, an unequivocal commitment has been made.”
But Senate Democratic aides said Reid’s word was contingent on McConnell and Senate Republicans upholding their word to “process nominations, consistent with the norms and traditions of the Senate.” Some Democrats believe Republicans violated the spirit of the agreement when they filibustered Obama’s nomination of former Sen. Chuck Hagel to be defense secretary.
Obama himself underscored the politics of the moment, with the quasi campaign-style event at which he presented his three candidates. He spent the first half of his presentation denouncing Republican intransigence before introducing the nominees, whose fate will now largely be in Republican hands.
“Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote,” said Obama, a former senator.
This partisan conflict shadows all nominations to the federal bench, where judges hold lifetime tenure. But it is particularly intense over the D.C. circuit court because of its special influence.
Although the court handles fewer cases than the other 11 circuit appellate courts, with 1,200 appeals being filed last year, many have potentially far-reaching significance as they challenge federal agency actions.
In a January 2013 case involving the Yakima, Wash.-based Noel Canning, for instance, the D.C.-based court struck down Obama’s use of recess appointments to staff the National Labor Relations Board. The court in March upheld the listing of the polar bear as a threatened species. Over the past year, it’s done everything from approving how California almonds are handled to rejecting demands that the CIA release photos of the slain Osama bin Laden.
Republicans and Democrats alike have contributed to the sclerotic confirmation process that has left 81 judicial slots vacant nationwide, including those on the powerful D.C. circuit. Obama’s own Democratic allies say the president has been too slow in pushing nominations; candidates have been named for only about one-third of the vacancies.
But as Democrats did when George W. Bush was president, Senate Republicans have also used the filibuster and other parliamentary tools to block White House judicial nominees. Former New York Solicitor General Caitlin Halligan, nominated by Obama to the D.C. circuit in September 2010, withdrew her name in March 2013 after Republicans united in a filibuster against her.
White House spokesman Jay Carney sidestepped a question Tuesday about whether Obama shared some responsibility for being slow to name judges.
“The record is clear in terms of when he nominates qualified individuals and they take three times as long to be considered by the Senate,” Carney said. “That slows the whole system down.”
CORRECTION: The spelling of the first name of Sri Srinivasan is NOT "Sir."