Third time not the charm: Senate GOP rejects another Obama judicial nominee

11/18/2013 5:27 PM

11/19/2013 1:15 PM

Senate Republicans on Monday stymied President Barack Obama’s latest judicial nominee, leaving one of the nation’s top appellate courts shorthanded and escalating the endless confirmation war.

Facing a nearly unified GOP front, U.S. District Judge Robert Wilkins failed to secure the 60 votes necessary to overcome a filibuster and win a seat on the U.S. Court of Appeals for the District of Columbia Circuit. The 53-38 vote late Monday afternoon marked the third time in three weeks that Senate Republicans used the filibuster to block an Obama nominee to the D.C.-based appellate court.

“I am deeply disappointed that Senate Republicans have once again refused to do their job and give well-qualified nominees to the federal bench the yes-or-no votes they deserve,” the president said in a statement afterward. “This obstruction is completely unprecedented. Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed. When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not.”

The Senate’s action, with only two Republicans, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, voting against the continuing filibuster, leaves the appellate court with eight active judges and three empty seats. One of the seats has been vacant since 2005. Sen. Orrin Hatch, R-Utah, voted present.

The persistent filibuster, moreover, poisons the well for other judicial nominees, potentially for years to come. It’s prompting Senate Democrats, once again, to consider the so-called “nuclear option” that would change Senate rules and ignite GOP rage.

The often threatened but never used nuclear option refers to a parliamentary maneuver that would enable the Senate majority to change the rules and win confirmations with 51 votes instead of 60.

The judicial nominee showdowns also illuminate the selective use of evidence by both sides.

“Now what we’re getting is not the pretense of extraordinary circumstances (to block a nominee),” said Norman Ornstein, resident scholar at the conservative American Enterprise Institute. “What we see is, ‘We’re going to keep the D.C. Circuit tilted in a conservative direction even through eight years of your presidency.’”

The court’s eight active judges are split evenly between Democratic and Republican appointees. But of the court’s six senior judges, who can also hear cases, five are Republican appointees.

Republicans say the court has all the judges it needs.

“We shouldn’t confirm any more judges to the D.C. Circuit, especially when those additional judges cost approximately $1 million per year, per judge,” Sen. Charles Grassley of Iowa, the senior Republican on the Senate Judiciary Committee, said Monday.

Obama nominated Wilkins, who is African-American, along with Georgetown University Law Center Professor Nina Pillard and attorney Patricia Ann Millett to the appellate court in June. Each, in turn, has failed to clear the 60-vote hurdle.

Politically, they never really had a chance.

For years, Democrats and Republicans alike have resisted the other party’s nominees from joining the D.C.-based appellate court. Though former Lawrence, Kan., resident Sri Srinivasan, a former Justice Department official, won unanimous confirmation in May, impediments have been far more common for the court, sometimes called the nation’s second-most powerful.

Located about four blocks from the U.S. Capitol, the appellate court oversees federal regulatory agencies, among other things. When Florida-based SeaWorld challenged Labor Department rules imposed following the drowning death of a trainer, the company came to the appeals court. The court heard oral argument in the SeaWorld case last week.

This week, underscoring the court’s reach, three judges will hear a challenge to the Environmental Protection Agency’s postponing smog cleanup deadlines for certain regions in California and other states. In January, a challenge by a Yakima, Wash.-based company prompted the court to strike down presidential “recess” appointments made to the National Labor Relations Board. The Supreme Court will review this sweeping decision early next year.

The court is also important for what it can lead to. Four of the Supreme Court’s current nine justices once served on the lower appellate court. Keeping potentially attractive candidates off of the D.C. court in the first place, as Democrats did during the Bush administration with thwarted nominee Miguel Estrada, is a tactic employed by both parties.

“It serves as a farm team for the Supreme Court,” said Nan Aron, president of the liberal Alliance for Justice, adding that the D.C. court handles an array of “environmental, civil rights, worker’s rights and health care” cases.

When fighting over the court, senators select the evidence that best suits their purpose.

The D.C.-based appellate court had 1,479 pending cases as of March 2013, according to the Administrative Office of the U.S. Courts. Most, but not all, appellate circuits had larger caseloads.

The administrative cases that dominate the D.C. court’s docket, moreover, can be particularly complex and time- consuming.

On the other hand, the D.C.-based appellate judges generally write less than their colleagues. The D.C. court last year issued 44 written decisions per active judge. By contrast, records show, the appellate circuit that includes North Carolina and South Carolina issued 242 written decisions per active judge.

“Based on its caseload, the court does not need more judges at the present time,” Republican Sen. John Cornyn of Texas wrote late last month. “The D.C. Circuit has already taken four months off this year. Meanwhile, other federal appellate courts genuinely are overburdened and do need more judges.”

More broadly, the D.C. court fight reflects the growing difficulty presidents face in getting appellate judges confirmed.

President Ronald Reagan’s first-term appellate court nominees, for instance, faced a median waiting time of 28 days from nomination to confirmation, according to the Congressional Research Service. Obama’s first-term appellate nominees, by contrast, endured a median waiting time of 225 days to confirmation.

Lesley Clark of the Washington Bureau contributed.

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