The Senate feud over key White House nominations boiled over on Capitol Hill last week as Republican leaders vowed to oppose the president's picks for the U.S. Court of Appeals for the D.C. Circuit, administration posts and national regulatory boards.
Majority Leader Harry Reid (D-Nev.) announced on July 11 that he plans to move forward with controversial, long-debated ­changes to the Senate's filibuster rules, a move that would strip the ability of Republicans to block votes on certain nominees. The announcement came one day after D.C. Circuit nominee Patricia Millett appeared on Capitol Hill for her confirmation hearing.
Millett, who leads the U.S. Supreme Court practice at Akin Gump Strauss Hauer & Feld, isn't a controversial pick when it comes to her qualifications — she stands in the top ranks of Supreme Court advocates. Senate Judiciary Committee members spent their time during her hearing debating the political hurdles that potentially stand in the way of her appointment to a what's widely considered the nation's second highest court.
"You find yourself in the midst of a broader battle," Senator Ted Cruz (R-Texas) told Millett. "And a battle on issues many of which are unconnected to your professional background qualifications, but issues sadly that have consumed the D.C. Circuit for decades."
Millett heard Republicans elaborate on their theory that President Barack Obama is trying to stack the D.C. Circuit — the court has three vacancies — to win more favorable rulings on federal agency administrative actions. "It is not consistent with our responsibility to allow one party to prevent qualified judges from going to the court and at the same time to enable packing the court to reach preferred outcomes," said Cruz, formerly an appellate partner at Morgan, Lewis & Bockius.
Millett was the first of three D.C. Circuit nominees to get a confirmation hearing in the Senate. Obama in June simultaneously nominated U.S. District Judge Robert Wilkins, a former Venable partner, and Cornelia "Nina" Pillard, a former Justice Department lawyer who is now teaches at Georgetown University Law Center.
The White House Counsel's Office first spoke to Millett of a nomination to the D.C. Circuit in January 2012. She was contacted a second time this March about her interest in serving.
Millett spent about an hour answering routine questions about her background, her judicial philosophy and whether her experience defending businesses would color her views as a judge. "My religious faith is the biggest part of who I am and I'm proud of that and it is something that's incredibly important to me," said Millett, who is Christian. "But our Constitution is a very precious system of justice that it creates. And it creates judges to decide cases based not on personal views, not on background, but based on rule of law."
If the Senate confirms her, Millett would trade her Akin earnings of about $1.07 million per year, according to Senate Judiciary Committee records, for the $184,500 salary of a federal circuit court judge. (Millett reported earning nearly $993,000 in 2011 at Akin, where she's been a partner since 2007.)
Judiciary chairman Senator Patrick Leahy (D-Vt.) said he would try to hold a vote on Millett's nomination as soon as possible.
Reid has long avoided changing the Senate's filibuster rules. Such a move is called the "nuclear option" because it would dramatically shift power away from the minority. Republicans, Reid said last week, are unfairly delaying votes on Obama's nominees and obstructing qualified candidates.
The nomination of Richard Cordray to lead the Consumer Financial Protection Bureau is stalled, Reid said, because Republicans don't like the agency. "They're blocking qualified nominees because they refuse to accept the law of the land," Reid said.
Minority Leader Mitch McConnell (R-Ky.) accused Democrats of "cooking up phony nomination fights" to pave the way for the rule change, when Reid could just bring up pending nominees for a vote. "Senate Democrats are gearing up today to make one of the most consequential changes to the United States Senate in the history of our nation," McConnell said. "And I guarantee you, it is a decision that, if they actually go through with it, they will live to regret."
The threat of the "nuclear option" could simply force a negotiated deal to hold confirmation votes on several nominees. Late in the week, Reid filed motions to force votes on July 16 for several nominees, including Labor secretary nominee Thomas Perez, who heads the Justice Department's Civil Rights Division.
McConnell has announced opposition to Perez's nomination as Labor secretary, calling him a "crusading ideologue" with "a flippant and dismissive attitude" toward the rule of law. Republicans also expressed concern about Perez's management of the Civil Rights Division, which was the focus of an investigation by several Republican members of Congress.
Republicans have called on two of the five nominees to the National Labor Relations Board to resign because they were elevated through recess appointments that the D.C. Circuit in January deemed unconstitutional. The Justice Department has asked the Supreme Court to overturn the circuit's ruling in Noel Canning v. NLRB, a case that could define the scope of the powers of the executive and legislative branches when it comes to nominations.
"You want the Senate to confirm your nominees to the NLRB, don't send us nominations that have already been declared illegal by the courts," McConnell said.
Todd Ruger can be contacted at email@example.com.