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The Senate showdown about the D.C. Circuit

October 30, 2013 by Lincoln Caplan


On Thursday, October 31st, as the New York Times reports today, the Democrats and the Republicans in the Senate are expected to have a showdown.

Millett (far right) at nomination announcement

On the surface, the controversy is about the nomination of Patricia Millett to fill a seat on the U.S. Court of Appeals for the District of Columbia, which has been vacant for eight years since John G. Roberts, Jr. was confirmed as chief justice of the United States.

In reality, it’s about the role of politics in shaping the federal judiciary and could be played out in a vote by the Democrats to change a long-held Senate rule that allows a minority of senators to block Senate action on legislation or a nomination through a filibuster, unless three-fifths (60 members) of the Senate vote to end debate.

As Republican senators acknowledged during Ms. Millett’s confirmation hearing in July, she is a strong candidate for the bench with bipartisan credentials. She served as an assistant to the Solicitor General from August 1996 to September 2007: she was hired during the Clinton administration and honored during the Bush administration with the Attorney General’s Distinguished Service Award for representing the interests of the United States Government before the Supreme Court in July 2004.

But the Republican argument being made against her nomination is that the D.C. Circuit doesn’t need her or the two other people President Obama has nominated to the court, because the court’s caseload is too low. Last February in the Washington Post, a retired chief judge of the court, Patricia Wald, answered that claim. She wrote: “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.”

She went on, “The number of pending cases per judge has grown from 119 in 2005 to 188 today. A great many of these are not easy cases. The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

In a constitutional sense, the vote on Ms. Millett should be straightforward: the Congress has approved each of the 11 seats on the D.C. Circuit; the Judicial Conference of the United States, which sets policy for the federal court system and is chaired by Chief Justice Roberts, said officially again last March that the court needs each of the three Obama nominees. The Senate Judiciary Committee approved the Millett nomination.

But for the past dozen years, since Senator Charles Schumer, the Democrat from New York, made ideology a factor in assessing some judicial nominations, the Senate has increasingly acted as if ideology is the overriding factor in all nominations for the federal courts of appeals and for the Supreme Court. It was the nomination of another strong candidate for the D.C. Circuit, who was known to be a legal conservative, which led Senator Schumer to make ideology an explicit factor in the review of some nominations.

The Republican argument against Ms. Millett is ostensibly neither ideological nor political. But virtually everyone who follows the Senate and judicial selection knows that the close scrutiny of the size and scope of the D.C. Circuit’s docket is best explained by politics: of the court’s current non-senior members, four were appointed by Republicans and four by Democrats; the approval of even one of President Obama’s current nominees to the court would alter that balance.

The threat from the Senate’s Democratic leadership is to change the chamber’s filibuster rule if Republicans lead a filibuster against allowing a full Senate vote on the Millett nomination. In 2005, when there was a similar showdown in the Senate over judicial nominations by President Bush, the Senate took the recommendation of seven Democratic and seven Republican senators and limited filibusters to “extraordinary circumstances.” The meaning of the term was not spelled out, but it almost certainly did not cover the nomination of a candidate like Ms. Millett who is respected by senators across the legal and political spectrum.

Every presidential nominee approved by the appropriate Senate committee, whether for the executive branch or the judiciary and whether nominated by a Democrat or a Republican, deserves a vote by the full Senate and to be approved or disapproved by a majority of the senators. If Ms. Millett is not given that kind of vote because of a filibuster, the Democratic leaders would serve the Senate and the country by changing the rule to permit a vote.

Lincoln Caplan is a visiting lecturer in law at Yale Law School and the author of “The Solicitor General and the Rule of Law,” among other books.

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