President Obama does not intend to “just sit idly by” as Republicans continue to thwart the administration’s three picks for a key federal appeals court in Washington, senior White House officials said Monday.
Republicans blocked the nomination of Robert Wilkins on Monday evening, sending the nomination into the purgatory of the Senate confirmation process—still alive, but unable to overcome a filibuster. Republicans similarly blocked two other nominees to the court—Patricia Millett and Cornelia “Nina” Pillard—in the past three weeks.
White House Counsel Kathryn Ruemmler said Monday in an interview with The National Law Journal that Obama has tried to build consensus to win the confirmation for the nominees—speaking directly with Senators in both parties in recent weeks.
“I’ve talked to him virtually every day about the subject, ” Ruemmler said. “ I don’t want to get out ahead of the president, I will say that he’s watching closely what the Senate does today. He’s not going to just sit idly by. “
At stake is Obama’s ability to place judges on the D.C. Circuit, which issues rulings of national importance about environmental, labor, communications, securities and other regulatory issues. The push to confirm judges on the court could ultimately determine the scope of Obama’s imprint on the federal judiciary.
Some lawyers who closely follow and chronicle the nomination and confirmation process have questioned whether the White House is doing enough to make the case for the D.C. Circuit nominees.
It might not be enough to find a nominee with bipartisan support, said University of North Carolina School of Law professor Michael Gerhardt. The administration, he said, might need to find a way to break the dysfunction in the Senate.
“At some point the administration has to be the one to help pave the way,” said Gerhardt, who served as special counsel to the Senate Judiciary Committee during the confirmation process of Supreme Court Justices Elena Kagan and Sonia Sotomayor.
Former White House Counsel John Dean, who served under President Richard Nixon, wrote in a blog post on Nov. 15 that the nominees had a big introduction from the White House, but after the filibusters on these nominees, “there should have been an immediate outcry from the Obama White House. But there was none.”
The White House has publicly and privately made arguments assailing Republicans’ reasoning for blocking any more judges on the D.C. Circuit, a senior administration official said. In 2003, the Senate confirmed John Roberts Jr. to the D.C. Circuit by a voice vote. (Roberts was elevated to the Supreme Court in 2005.)
Republicans chiefly argue the caseload of the D.C. Circuit does not justify adding any more judges. The appeals court has eight active judges—split evenly between judges appointed under Democrat and Republican presidents. President George W. Bush successfully appointed four judges to the D.C. Circuit over eight years.
Obama has appointed a lone judge to the D.C. Circuit—Sri Srinivasan, a former top lawyer in the U.S. Justice Department Office of the Solicitor General who previously was an appellate litigation partner at O’Melveny & Myers.
Republicans blocked the nomination of Caitlin Halligan for more than two years until she withdrew her name in March. Republicans foiled the nomination of Akin Gump Strauss Hauer & Feld partner Patricia Millett on Oct. 31, and the nomination of Georgetown law professor Nina Pillard on Nov. 12.
“What we are doing is addressing the political reality we face right now, which is not about the particular qualifications of any nominee, but rather whether or not the Republicans in the Senate are going to prevent the president from having any more judges on this court,” Ruemmler said in the interview with The NLJ.
Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Chuck Grassley (R-Iowa), have opposed the nominees ever since Obama announced them in a Rose Garden announcement in July. On Monday, they repeated arguments that the cost for the three judges–$3 million a year—is an unneeded expense. Republicans also argued Democrats were using the flap over the D.C. Circuit to try to divert attention from the problems associated with the rollout of the Affordable Care Act.
Ruemmler said she did not believe the Republican block on the three D.C. Circuit nominees can last through Obama’s second term—or another three years.
“Because at some point there will be enough consciousness raised about the outrageous obstruction here, and the cynicism of it, of the endeavor, and there will be consequences to people who are blocking extraordinarily well-qualified fair-minded judicial nominees for purely political purposes,” Ruemmler said.
Ruemmler, who has announced she will leave her post and return to private practice by the end of the year, said the confirmation gridlock calls into question what sort of nominees will want to go through the Senate’s confirmation process in the future.
“I have real concerns about the willingness of people, of the best people, to be willing to go through the confirmation process, given that it is not about what it’s supposed to be about, which is the Senate performing its appropriate role to provide advice and consent on nominees,” Ruemmler said.
Contact Todd Ruger at firstname.lastname@example.org.