Patricia Millett, if you don't end up on the D.C. Circuit, it's not your fault.
So says Ted Cruz, the latest Republican firebreather on the Senate Judiciary Committee. (You'll be seeing him a lot in the next U.S. Supreme Court fight.) During Millett's confirmation hearing before the committee in July, the Texan made it clear that his (likely) opposition to Millett will not stem from her readiness to sit on what just about everyone calls the second most important court in America, but because she has strolled right smack into the middle of a blood feud.
"You find yourself in the midst of a broader battle," Cruz told Millett as her hearing wound to a close, "and a battle on issues, many of which are unconnected to your professional background and qualifications."
For GOP purposes, that's a good thing, because Millett's credentials for the U.S. Court of Appeals for the D.C. Circuit are rather unassailable. The Akin Gump Strauss Hauer & Feld partner heads the firm's Supreme Court practice, chairs the firm's national appellate practice, and has argued 32 cases before the high court. She spent more than a decade in the solicitor general's office during both the Clinton and George W. Bush administrations.
"There is no question she should serve on that court," Judiciary Chairman Patrick Leahy said during the hearing.
Ah, if it were ever, ever that simple. Elected just last year, Cruz is a newcomer to the Senate, but an old hand at federal judicial politics. He's a former state solicitor general with his own experience arguing before the Supreme Court, who once clerked for William Rehnquist and served at the top levels of the U.S. Department of Justice. He put his finger squarely on the larger issue. "Partisan politics has driven this committee's approach to the D.C. Circuit for over a decade," he said.
Indeed, the skirmishes over D.C. Circuit nominees resemble nothing less than the much-quoted strategy in the film The Untouchables for taking on Al Capone: "They pull a knife, you pull a gun," says Sean Connery's Chicago police officer. "He sends one of yours to the hospital, you send one of his to the morgue."
And so, during the last decade, the Democrats took out Miguel Estrada, the Gibson, Dunn & Crutcher lawyer and former Bush nominee who they feared would end up on the high court, and Peter Keisler, a former Justice official now at Sidley Austin. Earlier this year, Republicans scuttled New York lawyer Caitlin Halligan's bid for the appeals court over fears that she was hostile to gun rights.
Some have made it through: As a result of the "Gang of 14" compromise in 2005, Janice Rogers Brown and Thomas Griffith were confirmed, while former Ken Starr protégé Brett Kavanaugh followed a year later. This May, after Halligan withdrew, the Senate unanimously confirmed former Obama deputy solicitor general Sri Srinvasan to the court.
Srinvasan was the first Obama nominee to make it to the D.C. Circuit, giving it eight active judges. During the early years of his presidency, Obama had let openings on the court sit idle without a candidate, much to the consternation of liberal groups still fuming about the glide path given Bush's judges. Srinvasan's confirmation splits the court down the middle, 4 to 4, between Democratic and Republican appointees.
That's key. The GOP appears determined not to hand President Barack Obama the balance of power on the court, which hears crucial regulatory appeals from federal agencies. For his part, the president seems to be trying to make up for lost time. In May, along with Millett, he nominated two other lawyers to the court, Cornelia Pillard, a professor at Georgetown University Law Center, and U.S. District Judge Robert Wilkins.
The White House's surprisingly aggressive move had some Republicans comparing Obama (again) to Franklin Roosevelt. Cruz, at Millett's hearing, accused the president of "court-packing"—even though current law allows for 11 slots on the court. Senator Mike Lee, a Republican from Utah, said the president is trying to "stack the deck to his advantage."
Senator Charles Grassley of Iowa, the top Republican on the Judiciary Committee, has introduced a bill to cap the court at eight judges. In support, Grassley has revived an argument advanced by Democrats back in 2006, when Keisler was in the mix: that the court doesn't need more than eight judges because of its caseload, which trails that of several other circuits. Some 1,193 appeals were brought in 2012, compared to 1,379 in 2005, he argues. Democrats and the White House, naturally, dispute that point, saying Grassley is ginning up the numbers by only counting appeals filed within a given year, not pending appeals that stretch across the years. According to the liberal Constitutional Accountability Center, the court at the end of last year had 1,419 appeals pending; in 2005, when Brown and Griffith were confirmed (to what were then the 10th and 11th seats on the court), there were 1,313 appeals pending. And because there are only eight active judges now, the number of cases per judge has increased.
"There's a lack of consensus regarding the workload of the court," the understated Grassley said at Millett's hearing. Look beyond the stat geekery, however, and the GOP is being pretty transparent about its fears. Senator Lee, a former clerk to Justice Samuel Alito, worried aloud at the hearing about the president's "controversial executive agenda," and Cruz said, "I believe there is an activist base that is pressuring the president, that is pressuring senior Senate Democrats, to get judicial nominees on the D.C. Circuit to protect the regulations coming from this administration."
Given that Obama's health care plan is still being implemented (and challenged) and that the president recently vowed to use his executive authority to reduce emissions from coal-fired power plants to combat climate change, Republicans worry that friendly judges on the circuit will rubber-stamp his plans. As an example of a check that is needed on the president's power, they point to a D.C. Circuit ruling this year that declared Obama's recess appointments to the National Labor Relations Board unconstitutional. (That case, which will be heard by the Supreme Court in the upcoming term, was decided by—you guessed it—three Republican appointees, including Griffith.)
So, Cruz is right. Almost none of this has to do with Millett, her approach to judging, her qualifications, or her command of precedent, and everything to do with a Sharks and Jets rumble that shows no signs of abating and may be lurching again toward confrontation. That may be why Millett's hearing was so brief. For a judgeship on one of the most powerful courts in the land, it didn't even last two hours. And as if to write his point in indelible ink, Cruz did not ask her a single question.
Oliphant is a Washington, D.C.–based journalist who writes on the intersection of law and politics.