President Barack Obama announces three nominees to the U.S. Court of Appeals for the D.C. Circuit. (Diego M. Radzinschi/NLJ)
The Senate’s historic vote last week to end minority party filibusters of most judicial nominees means three nominees to the U.S. Court of Appeals for the D.C. Circuit will likely win approval. Their appointments could reshape the dynamic of a key appellate bench as major federal regulatory issues unfold.
In the weeks leading to the Nov. 21 decision, Republicans thwarted President Barack Obama’s picks for the court, compelling Democrats to turn to the so-called “nuclear option” to strip the minority’s ability to impede up-or-down votes on nominations.
The change — which now means a simple majority can overcome a filibuster — marked a fundamental shift in the confirmation process. The move is expected to go a long way toward eliminating the partisan gridlock that has left some nominees languishing. Caitlin Halligan, Obama’s first D.C. Circuit nominee, withdrew her name in March after waiting for more than two years for a vote.
“It’s time to change the U.S. Senate before this body becomes obsolete,” Senate Majority Leader Harry Reid (D-Nev.) said. “To change the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them just as well.”
The most immediate effect of the change will come when the Senate votes on the nominations of Patricia Millett, Cornelia Pillard and Robert Wilkins for the D.C. Circuit. The court has three vacancies. The Senate is set to vote Dec. 9 on the nomination of Millett, a co-leader of Akin Gump Strauss Hauer & Feld’s appellate and U.S. Supreme Court practice. Pillard teaches at Georgetown University Law Center and Wilkins is a federal trial judge in Washington. The nominees declined to comment.
The confirmation of the three judges would shift the balance of active judges from an even split — four Republican appointees and four Democratic appointees — to a 7-4 advantage for Democrats. Republican-appointed judges would have a 9-8 advantage counting senior judges, who still sit on hearing panels and write opinions.
Republicans accused the Obama administration of trying to “stack” the D.C. Circuit to make it easier to push the president’s domestic agenda. They also argued the caseload did not justify adding any more judges.
“This is about a naked power grab, and nothing more,” Sen. Chuck Grassley (R-Iowa), ranking member of the judiciary committee, said last week. “This is about the other side not getting everything they want, when they want it.”
Democrats said the Senate rules change does not apply to U.S. Supreme Court nominations and to legislation.
The D.C. Circuit is a battleground for national issues that include climate change, open Internet regulations, campaign finance and securities rules. Lawyers representing business clients are fighting in the court over the U.S. Securities and Exchange Commission’s implementation of the Dodd-Frank Act. The Supreme Court recently agreed to hear greenhouse gas rules that were the centerpiece of litigation in the D.C. Circuit.
Paul Smith, who leads the appellate and Supreme Court practice at Jenner & Block, said the addition of Millett, Pillard and Wilkins on the bench would not dramatically shift the court in any one direction.
“The court swings back and forth with the White House a little bit, but these are not nominees who are going to take the court off in a drastically different direction,” said Smith, who represents Fox Broadcasting Co. in the D.C. Circuit in a dispute over streaming television online. “They’re all three very fine nominees and I’m very pleased to see they will get their chance to serve.”
One area where the addition of three new judges could have its greatest effect: full-court hearings. The D.C. Circuit rarely sits en banc — in part, some commentators have said, because of the small size of the court.
Greater ideological diversity could give lawyers more options after they lose before a three-judge panel, said Stephen Vladeck, who teaches at American University Washington College of Law.
Having Millett, Pillard and Wilkins on the court is “not going to tell you how any specific case is going to come out, but that will portend a shift in the court’s jurisprudence — and, if anything, more division on a court that has not been one of the more divided ones in the country,” Vladeck said.
Obama earlier this year successfully appointed former O’Melveny & Myers partner Sri Srinivasan to the D.C. Cir­cuit — so far the president’s lone successful nomination to that bench. President George W. Bush placed four lawyers on the court — including John Roberts Jr., who was elevated to chief justice in 2005.
“[A] majority of senators believe, as I believe, that enough is enough,” Obama told reporters after the Senate voted, 52-48, with three Democrats voting against the rules change. “The American people’s business is far too important to keep falling prey day after day to Washington politics.”
Grassley said the Senate’s landmark change came with a silver lining.
“There will come a day when the roles are reversed,” he said. “When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees.”
Before the Senate vote, White House counsel Kathryn Ruemmler said in an interview that she was confident the Republican blocks on the D.C. Circuit nominees would not last through the end of Obama’s second term. It was only a matter of days before she was proved right. “Because at some point there will be enough consciousness raised about the outrageous obstruction here … and there will be consequences to people who are blocking extraordinarily well-qualified, fair-minded judicial nominees for purely political purposes,” Ruemmler said.
Contact Todd Ruger at email@example.com. Zoe Tillman contributed to this story.