President Barack Obama’s naming of three lawyers to a key appeals court last week struck a new, more aggressive tone on the judicial nominations front, a move that ultimately could determine the size of the imprint his presidency leaves on the nation’s courts.
Obama’s formal announcement of his nominees for the U.S. Court of Appeals for the D.C. Circuit symbolized a White House more dismissive of Republican opposition and a president more willing to get involved personally in the fight, according to Washington lawyers who follow federal judicial nominations.
Obama on June 4 chose the Rose Garden to personally make the announcement instead of the usual route via a press release. He was flanked by the three D.C. Circuit nominees — Patricia Millett, Cornelia Pillard and U.S. District Judge Robert Wilkins. And he took a less-than-bipartisan tone, chiding Republicans for delaying votes on judicial candidates and, in some instances, blocking nominations.
Doug Kendall, president of the progressive Constitutional Accountability Center, said Obama long wanted to turn down the temperature on the politics of judicial nominations. "I think he tried through the first term to make that a reality," Kendall said. Now, he said, Obama "is fed up with the Senate’s treatment of his nominees."
An intensified fight over judicial nominations could affect more than just the makeup of the D.C. Circuit; it could risk a larger battle over judicial appointments including to the U.S. Supreme Court, appellate lawyers and observers of nominations politics said.
It risks prompting Republicans to say "we’re just not going to play ball with him at all and we’re just going to look for an excuse to not confirm judges," said Russell Wheeler, a Brookings Institution fellow who closely tracks judicial nominations.
A day after the nominations, top administration officials pitched the new nomination effort to more than 150 activists who are concerned about vacancies in the court. White House counsel Kathryn Ruemmler and the administration’s lawyer in charge of nominations, Chris Kang, attended the meeting.
"The messaging was pretty much what we heard from the president," said Marge Baker, People For the American Way’s executive vice president for policy and program. "It’s a high priority, it’s about justice for all Americans and it’s going to continue to be a priority."
The push comes at a time when the makeup of active judges on the nation’s circuit courts has reached a tipping point. After the Senate’s confirmation of Sri Srinivasan to the D.C. Circuit last month — the first appointment to that court in seven years — the number of Democratic- and Republican-appointed judges are split evenly. The question: "Is Obama going to be able to put an imprint on the courts of appeals, and I think that’s still up in the air," Wheeler said.
If Republicans dig in their heels, a Senate battle could slow confirmation for all judicial nominees, said Washington lobbyist Vincent Eng of Veng Group, who has carved out a niche advocating for judicial candidates in the Senate.
"As history has shown, when the Senate Republicans target a nominee of the president, we tend to see a slowing down of the whole process," Eng said. He hoped that doesn’t happen, but said: "It wouldn’t surprise me."
At the same time, putting forward three nominees could help their chances. "When you have three individuals of such high esteem, the Senate can’t deny confirmation on all of them," Eng said. "I think, historically speaking, getting all three will be extremely difficult. We’ll see if the administration can get one."
Senate Majority Leader Harry Reid has even raised the possibility of changes to Senate rules on the filibuster to prevent Republicans from blocking nominees. Republicans filibustered Obama’s first nominee to the D.C. Circuit, Caitlin Halligan, for almost three years. She withdrew in March, and Obama cited her in his remarks in the Rose Garden.
"Nobody suggested she was not qualified to serve on the court," Obama said. "If Caitlin had gotten a simple up-or-down vote before the full Senate, I am confident she would have been easily confirmed." Instead, "for 2 1/2 years, Senate Republicans blocked her nominations. It had nothing to do with Caitlin’s qualifications. It was all about politics."
Carter Phillips, chairman of Sidley Austin’s executive committee, said he expects Obama’s three nominations to die in the Senate. "It’s pretty clear to me that the Republicans have their heels dug in," he said. "Unless the Democrats are prepared to kill the filibuster rule or modify it, I don’t think these will ever move."
If the nominations fail, Phillips said, it wouldn’t harm Obama’s broader legacy when it came to the courts. Srinivasan was confirmed after Obama failed multiple times to get Halligan through the Senate, he noted. "It’s not as if that stigma has somehow weakened him in any sense," Phillips said. "I think if these three just sit there, he’s in the same boat as every president since Clinton."
On the other hand, Theodore Boutrous Jr., co-chairman of the appellate and constitutional law practice at Gibson, Dunn & Crutcher, said the president seemed to "lay out a marker and say, ‘I’m going to nominate qualified people — there’s no basis for not confirming them other than pure politics.’ "
He continued: "It doesn’t bode well for either side of the political spectrum if the party that’s not in control of the presidency balks at nominees at their caliber. Having three at once puts the issue front and center."
The D.C. Circuit is a flashpoint for judicial nominations. Senate Republicans have said the three vacancies on the 11-judge court need not be filled because the sitting judges can handle the workload. Senator Chuck Grassley (R-Iowa) has introduced a bill to strip the three empty seats from the D.C. Circuit.
"It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda," Grassley, the ranking Republican on the Senate Judiciary Committee, said last week.
Obama, like many others, last week called the D.C. Circuit the second most important court in the country based on a caseload that includes national-security disputes, campaign finance cases and worker rights. "The court’s decisions impact almost every aspect of our lives," Obama said.
There are eight active judges on the bench, including Srinivasan, who is expected to be sworn in this month, giving it a 4-4 split between jurists appointed by Republican and Democratic presidents. Three of the eight active judges are women.
Chief Judge Merrick Garland and judges Judith Rogers and David Tatel joined under President Bill Clinton. Judges Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith were appointed by President George W. Bush. Judge Karen LeCraft Henderson became a circuit judge in 1990.
The even split, however, doesn’t take into account the role that senior judges play on the D.C. Circuit. Six senior judges — a majority were appointed by Republican presidents — regularly sit on panels and write opinions.
The Rose Garden setting may have been a nod to liberal groups who have long wanted Obama to make a grand announcement about judicial nominations. President Bush in May 2001, for instance, announced his first 11 appellate court nominations in a ceremony at the White House. "I think having the Rose Garden event was very symbolic of saying, ‘This is going to be my fight and I’m going to be invested in this,’ " Eng said.
Obama urged the Senate to act swiftly on the three nominees. He scoffed at the notion, advanced by conservatives, that he was "packing" the appeals court.
"I didn’t create these seats. I didn’t just wake up one day and say, ‘Let’s add three seats to the District Court of Appeals,’ " Obama said. "These are open seats, and the Constitution demands that I nominate qualified individuals to fill those seats. What I am doing today is my job. I need the Senate to do its job."