Last week we reported that President Obama’s agenda may depend on how many judges he can appoint to the U.S. Court of Appeals for the D.C. Circuit. Today Obama nominated three legal heavyweights to fill every vacancy on the D.C. Circuit, potentially setting up a historic battle over how the Senate confirms judges.
There are eleven seats on the D.C. Circuit, which hears most challenges to agency actions (the primary focus for Obama’s agenda since he cannot move major liberal legislation through Congress). There were four vacancies until a couple weeks ago, when the Senate confirmed Sri Srinivasan 97-0. That left the court with four Republican nominees and four Democratic nominees. Adding three more judges with a liberal-leaning judicial philosophy would effectuate a wholesale change in the balance of that critical court.
Today Obama nominated Prof. Cornelia Pillard from Georgetown Law, attorney Patricia Millet from the powerhouse law firm Akin Gump, and Judge Robert Wilkins from the U.S. District Court for the District of Columbia. All three of these nominees–two lawyers and one judge–are brilliant and accomplished.
The problem here is the double standard. As I discussed in detail in my book Resurgent, during George W. Bush’s first term Senate Democrats filibustered Miguel Estrada’s nomination for the D.C. Circuit, simply because he was a conservative Hispanic. Then during Bush’s second term, then-Sen. Obama was part of filibustering Peter Keisler for the D.C. Circuit.
Obama should not have this many nominations to the D.C. Circuit because there should not have been four vacancies. Democrats–reportedly due in large part to Sen. Charles Schumer (D-NY)–began systematically filibustering appellate court nominees for the first time in American history in 2001. This created an unusually high number of vacancies, and now Democrats are seeking to change the rules to ensure speedy confirmations for all of Obama’s nominees to fill these open judicial seats.
On no court is this clearer than another leading appeals court, the U.S. Court of Appeals for the Fourth Circuit. There are fifteen seats on that court. Because of Democrats’ systematic filibustering to keep Bush from filling seats during his second term, Obama has now appointed six of those fifteen lifetime seats. The court has swung from moderately conservative to solidly-liberal in just four short years.
But as we reported last week, Sen. Harry Reid (D-NV) is counting heads to see if he has the votes to unilaterally change Senate rules. If Reid succeeds, instead of 60 votes to end potential filibusters, Reid could force a vote on any judicial nomination and win with only 50 votes (plus Vice President Joe Biden casting a tiebreaking vote). This possibility is called the “nuclear option” because of the tectonic shift it would cause in Senate confirmations.
With the death of Sen. Frank Lautenberg (D-NJ), strategists are considering how New Jersey Gov. Chris Christie’s presumed appointment of a Republican to temporarily fill that Senate seat might dampen Reid’s plans. On the other hand, some Republicans are considering voting for these nominees in the hopes of averting a nuclear meltdown-showdown. If Republicans do not keep 41 votes together to block a nomination, there would be no cause to push the nuclear option.
In a perfect world, a president could nominate anyone he wanted for a judgeship, and the Senate would confirm if that nominee had the right qualifications in terms of (1) education, (2) experience, and (3) character. It was expected that a conservative president could nominate conservative judges, and a liberal president could nominate liberal judges.
Then Senate Democrats fundamentally altered that dynamic with Ronald Reagan’s nomination of Robert Bork to the Supreme Court in 1987, and now they’ve extended that alteration to the lower courts.
The coming weeks should reveal what comes next in the battle for the nation’s courts.
Breitbart News legal columnist Ken Klukowski is on faculty at Liberty University School of Law.