Now that the Senate filibuster rules have changed, many are wondering if that means the three nominees to the D.C. Circuit Court of Appeals will be quickly confirmed.
According to The Hill blog, the nominees most likely will be confirmed, but as one former senior administration official said, “…with some blood on the wall.”
Justice at Stake Director of Federal Affairs and Diversity Initiatives Praveen Fernandes says the change offers the potential for profound benefits for a federal judiciary plagued with a 10 percent vacancy rate. (Video: Fernandes discusses rule change implications)
Political fallout over judicial nominations is already being seen across the country.
The Washington Times reports that, “Conservative groups are looking to make the Capitol Hill battle over President Obama’s judicial nominees an issue in Senate elections in 2014 by arguing that red-state Democrats are ‘rubber-stamping’ liberal judges.”
The Judicial Crisis Network has already announced a round of ads attacking Sen. Mary L. Landrieu in Louisiana for supporting all of Mr. Obama’s judicial picks. The group warns that she and other Democrats will have to be careful going forward about which judges they approve.
Others believe the judicial fight likely won’t be a big issue in the 2014 elections.
“Unless the nominee is extremely controversial, which none of Obama’s have been, it’s a real stretch,” said Mark McKinnon, a GOP strategist. “Otherwise, it is expected that representatives vote for their party nominees. Generally, it’s just way off voters’ radar screens.”
Recent Senate action to eliminate filibusters of most nominees for federal judgeships is continuing to generate intense debate. The issue’s high profile is reflected in numerous media pieces, including a veteran legal journalist’s strong critique of an earlier commentary by a prominent federal appeals judge.
In The Atlantic online, Andrew Cohen takes issue with the opinion of Judge J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals, whose Washington Post op-ed said the rules change would leave a harmful and severe impact on the federal judiciary (see Gavel Grab). Judge Wilkinson’s views were summed up by the op-ed headline, “Bipartisan approval lends a sense of balance to the judiciary.”
According to Cohen, Judge Wilkinson’s essay “is a polemic against what Senate Democrats accomplished last week. It frets about the possibility of future partisanship while ignoring the devastating impact recent Senate partisanship has had upon the nation’s judges. Worse, it omits the judge’s own role in a version of this fight that unfolded at the end of the Clinton administration. Judge Wilkinson, it turns out, isn’t exactly an impartial witness in this dispute.” Read more
Justice at Stake discussed the need to fill vacant federal judgeships, the importance of the D.C. Circuit Court of Appeals and other topics in an appearance on Sirius satellite radio’s Left Jab talk show.
Praveen Fernandes, JAS director of federal affairs and diversity initiatives, appeared on the show shortly after the U.S. Senate voted last week to change its rules in order to eliminate filibusters of most nominees, except for justices on the Supreme Court. Fernandes elaborated on Justice at Stake’s views this way:
“Justice at Stake had no formal position on filibuster reform. What we had was a formal position on the fact that our judiciary can’t be the institution it needs to be, can’t deliver justice if it’s continuing to occupy a position where 10 percent of its seats sit vacant. And so what we needed to have is this obstruction end. And so this is one means of doing it, and frankly we’re a little sad that it came to that.
“When this happened we were incredibly happy about the prospect of at least breaking the log jam of federal nominations.”
Senate Democrats laid the groundwork for a controversial procedure to change the rules after Republicans had blocked three of President Obama’s for the D.C. Circuit Court, by filibustering and refusing to allow an up-or-down vote. With that delaying tool eliminated, it is expected that action to confirm the trio of nominees will begin after the Senate completes its holiday recess.
The D.C. court is considered the “second most important appellate court in the country because it is the court of jurisdiction for a variety of different [critical] cases,” Fernandes said. He also discussed numerous other issues of concern to Justice at Stake and other defenders of fair and impartial courts in the talk radio show segment.
A harmful, severe impact on the federal judiciary will result from a Senate rules change eliminating filibusters of most nominees for judgeships (see Gavel Grab), a prominent federal appeals court judge says.
J. Harvie Wilkinson III of the Fourth U.S. Circuit Court of Appeals, who was among finalists considered by President George W. Bush for elevation to the U.S. Supreme Court, gives his opinion in a Washington Post op-ed entitled, “Bipartisan approval lends a sense of balance to the judiciary.”
Wilkinson writes that the rules change eliminated a balancing impact of the prior requirement for bipartisan support in order for a lower-court or appeals court judge to be confirmed: “Given that the ballot box is an imperfect guarantor of the bent or character of judicial appointments, any incentive to place jurists of moderate persuasion on the courts must come from the need to attract Senate support across the aisle. Last week, that need was much diminished.” Read more
U.S. Senate Majority Leader Harry Reid is considering, in the wake of Senate Republicans’ recent derailment of three of President Obama’s nominees for a highly influential appeals court, calling for a vote that could make it harder for the minority party to filibuster a president’s nominees.
If Reid seeks the vote and it is successful, the shift in rules likely would apply to federal judges and executive branch appointees such as cabinet members, but not Supreme Court justices, the New York Times reported.
Critics have called such a vote the “nuclear option” because it would upend Senate tradition and is highly controversial. The term refers to employing a simple majority vote to revise filibuster rules, rather than the 67-vote majority typically required under Senate rules for such a change.
To learn about Senate Republicans blocking three nominees to the U.S. Court of Appeals for the District of Columbia Circuit along largely partisan lines, see Gavel Grab. On PBS, meanwhile, a Newshour segment focused on the impact of blocked judicial nominations. It included an exchange of views between Caroline Fredrickson, president of the American Constitution Society for Law and Policy, and Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.
As many had predicted, the nomination of Cornelia “Nina” Pillard to the D.C. Circuit Court on Tuesday became the latest to be derailed by a Senate filibuster. The New York Times reports that Pillard’s nomination failed to clear the 60-vote hurdle required to advance, with a tally of 56 to 41. Pillard’s is the second of President Obama’s nominations to the D.C. Circuit to be blocked by a filibuster in recent weeks, following that of Patricia Millett. One remaining nominee, Robert Wilkins, could face a vote soon.
Meanwhile, the Times reports that Senate Democrats’ frustration with the process has led to “the likelihood — which appeared to grow considerably on Tuesday — that the fight will escalate and result in a change to the Senate rules to limit the minority party’s ability to filibuster judicial nominees.” But a report in The Hill suggests that support for such a change might still be out of reach, with Senate Majority Leader Harry Reid perhaps unable to muster the 50 votes needed to deploy the so-called “nuclear option.” A senior Democratic aide cited in the piece called the speculation “premature.”
With Senate votes on D.C. Circuit Court nominees Cornelia Pillard and Robert Wilkins looming, the superheated political atmosphere around the nomination process (see Gavel Grab) gets an examination in a New York magazine piece. The article, entitled, “What’s at Stake in the Nuclear Showdown,” notes that the D.C. Circuit Court’s “unique importance” has intensified the battle over President Obama’s nominees. Of particular interest is the court’s likely role at the center of a fight over climate-change policy. The piece notes that the Environmental Protection Agency is expected to issue regulations on existing power plants, and an anticipated challenge to those rules would land in the D.C. Circuit’s docket. According to Senate staff sources, a cloture vote on the Pillard nomination is expected at 5:30 pm today. Depending on whether Democrats are able to garner the 60 votes required to end debate and proceed to a vote on the merits of the nomination, there may also be a subsequent up-down confirmation vote.
Meanwhile, an article in Politico notes that opponents of the current D.C. Circuit nominees are taking hardball tactics to Senators’ home states. The conservative Judicial Crisis Network will begin airing television ads in Arkansas targeting U.S. Senator Mark Pryor’s support for the nominations. The unusual ad campaign is reportedly being run at a cost of over $100,000, and targets Pryor ahead of a 2014 reelection bid.
U.S. District Court Judge Robert Wilkins was easily confirmed to the bench in 2010, but his nomination for the U.S. Court of Appeals for the District of Columbia is likely to generate more controversy at a Senate hearing next week.
The Blog of Legal Times made that forecast. It also renewed widespread speculation that if Senate Republicans move to block all three of President Obama’s recent nominees to the D.C. Circuit Court, it could bring a showdown with Democrats and a move by the latter to change rules over filibusters of judicial nominations.
Judge Wilkins faces a hearing of the Senate Judiciary Committee on Wednesday. You can learn about the recent hearings of Obama’s other two nominees by clicking here for Gavel Grab posts about Patricia Millett and by clicking here for posts about Cornelia Pillard.
In these other dispatches about fair and impartial courts
- A Fox News article recapped President Obama’s nominations to the U.S. Court of Appeals for the District of Columbia, stating that Obama “set the stage for a fierce partisan fight” when he picked three individuals for openings on the 11-member court.
- Columnist Michael McGough has a Los Angeles Times commentary headlined, “Is John Roberts packing the FISA court with government patsies?”
- New rules adopted by the Pennsylvania Supreme Court will ban collection of legal fees by staff of appellate judges. Lynn Marks, executive director of Pennsylvanians for Modern Courts, a JAS partner organization, was quoted by Newsworks about a harmful perception of impartial courts that is created if a justice’s wife takes legal fees from law firms that have business before the court.
- The Wausau (Wisc.) Daily Herald features an interview with a member of an attorney task force that recently recommended limiting state Supreme Court justices to a single, 16-year term (see Gavel Grab).
The serious and unfinished business of confirming qualified federal judges continued to spark widespread news media coverage and commentary despite a summertime recess for Congress.
With Senate Republicans signaling they may try to block confirmation of three of President Obama’s nominees to a highly influential appeals court, there was discussion of Democrats possibly seeking a change in Senate rules in order to advance the nominees to up-or-down votes.
A Roll Call article was headlined, “Leahy Eyes ‘Nuclear Option’ Threat to Confirm Judges.” And a Los Angeles Times column by Michael McGough echoed, “Harry Reid should be ready to go ‘nuclear’ over judicial nominees.” The term “nuclear option” refers to employing a simple majority vote to revise filibuster rules, rather than the 67-vote majority typically required under Senate rules for such a change. Read more