Mr. Obama has faced political pressure from both sides on the issue of vacant federal court seats, particularly those in the US Court of Appeals for the District of Columbia Circuit, aka the D.C. Circuit. Democrats have wanted him to move more aggressively with nominations, while Republicans say the D.C. Circuit doesn’t even need more judges, and are promoting a plan to shift seats to other circuits.
In his Rose Garden announcement, Obama blamed Senate Republicans for blocking his judicial nominees, calling their motives political, and noting that when they do reach the floor of the Senate, they are confirmed with bipartisan support.
“So this is not about principled opposition; this is about political obstruction,” Obama said.
In his remarks, Obama claimed that his judicial nominees have waited three times longer to receive confirmation votes than those of his Republican predecessor, and made that point twice for emphasis. Obama also acknowledged that Democrats, too, held up judicial nominations when he was in the Senate.
“But what's happening now is unprecedented,” Obama said. “For the good of the American people, it has to stop. Too much of the people's business is at stake. Our legal framework depends on timely confirmations of judicial nominees.”
Federal court nominations, which are made for life, represent an important part of a president’s legacy. And by moving three names at once, the president is signaling that he’s ready to use political capital on the matter. Critics of the president accused him of moving now to create a distraction from the troubles plaguing various federal agencies and departments, including the Internal Revenue Service and Justice Department.
As expected, the president nominated a diverse trio of respected legal figures to the D.C. Circuit:
Patricia Ann Millett runs the Supreme Court practice at the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C., and has argued 32 cases before the US Supreme Court – until recently, Obama said, a record for a female lawyer. She also served nine years, during both Democratic and Republican administrations, as an assistant to the solicitor general at the Justice Department.
Cornelia “Nina” T.L. Pillard is a law professor at Georgetown University in Washington. She has served twice in the Justice Department and was an attorney for the NAACP Legal Defense and Education Fund. Obama cited as “landmark successes” her defense before the Supreme Court of the Family and Medical Leave Act and the opening of the Virginia Military Institute to female students.
Robert Leon Wilkins, who is African-American, is a judge on the federal D.C. District Court, confirmed without opposition in 2010. Before that, Judge Wilkins spent eight years in private practice, and a decade as a public defender in Washington, D.C.
One aspect of his nominees that shows no diversity is their common legal alma mater. Like Obama, they are all graduates of Harvard Law School.
Last month, Obama won the first confirmation of a judge to the D.C. Circuit of his presidency, when Sri Srinivasan was approved 97 to 0 by the Senate. In his remarks Tuesday, Obama pointed to “mounting public pressure” and “vocal bipartisan support” as helping Judge Srinivasan win confirmation. But he also noted the experience of another D.C. Circuit nominee, Caitlin Halligan, who faced multiple filibusters over 2-1/2 years and eventually withdrew in March.
The D.C. Circuit holds a special place in the pantheon of federal appellate courts, as it hears cases of national and international significance. The court considers the constitutionality of federal regulations and the actions of federal agencies, and is often the last word in cases, since most do not reach the US Supreme Court. The D.C. Circuit is also a steppingstone to the high court.
But Sen. Charles Grassley (R) of Iowa, the top Republican on the Senate Judiciary Committee, wants to shrink the D.C. Circuit, saying its caseload does not justify 11 seats. He has introduced legislation that would shift two of the court’s seats to other circuits and eliminate one seat altogether.
Obama laughed with exasperation at the claim that he is trying to “pack the court.”
“We're not adding seats here,” he said. “We're trying to fill seats that are already existing.”
With the addition of Srinivasan, the D.C. Circuit now has four Democratic appointees and four Republican appointees, but among the court’s six “senior judges” – formerly full-time judges who still hear cases – five are Republican appointees. So for both parties, the current vacancies have clear political import.
Senate majority leader Harry Reid (D) of Nevada has suggested he may move this summer to change the rules on filibusters – from a requirement of 60 votes to end debate to a simple majority – on judicial and executive branch nominations. Such a move, known as the “nuclear option,” would add an explosive new level of partisan angst to the Washington scene.