Everything you need to know about the nominations fight — and why it might end the filibuster

November 18, 2013
Georgetown Law Center professor Nina Pillard, rumored to be among Obama's picks for the D.C. Circuit. (American Constitution Society)
Georgetown Law Center professor Nina Pillard, one of Obama's nominees for the D.C. Circuit. (American Constitution Society)

On November 18, Senate Republicans successfully filibustered the nomination of Robert Wilkins to join the D.C. Circuit Court of Appeals, making him the third Obama nominee to that court to be blocked on the Senate floor in the past month. Patricia Millett's nomination was blocked on October 31, and Nina Pillard's was halted on November 12.

Whether or not those judges make it onto the court could make or break Obama's second-term agenda. They'll be the ones ruling on decisions coming from the EPA on how to regulate carbon emissions, and from the Commodities Futures Trading Commission on how to implement the Dodd-Frank law.

What's more, the filibusters make it likelier that Senate Democrats will force changes to Senate rules to make sure judicial filibusters like this (and maybe executive filibusters, like that of Fannie/Freddie regulator nominee Mel Watt, too) harder, or abolish them altogether. Even reform-skeptical Democratic Senators like Pat Leahy are warming to such a move.

Here's what you need to know about the D.C. Circuit fight, and the filibuster reform fight it might trigger.

What's the D.C. Circuit Court of Appeals?


Robert Bork, then a judge on the D.C. Circuit Court of Appeals, is sworn in for his Supreme Court confirmation hearing before the Senate Judiciary Committee in 1987. (John Duricka / AP)

The D.C. Circuit is one of 12 regional Courts of Appeals that handle appeals from District Courts, which are the trial courts for civil and criminal cases conducted at the federal level. There's also a Court of Appeals for the Federal Circuit, which handles cases dealing with patents, claims against the federal government, international trade and other specialized matters, regardless of where they arise geographically.

Other regional Courts of Appeals span multiple states; the First Circuit, for instance, covers New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico. The D.C. Circuit's geographic jurisdiction is the smallest of any federal Court of Appeals, given that it doesn't cover any area outside the District of Columbia.

So it's the least important federal appeals court there is, right?


More than a decade before joining the Supreme Court, Elena Kagan (left) was nominated by President Clinton (right) to the D.C. Circuit, though her confirmation never came up for a vote. (Sharon Farmer-AP)

Hardly. Important stuff happens in D.C. In particular, federal administrative agencies make their decisions here, and when people object, their appeals sometimes make it to the D.C. Circuit, often going there directly without passing through the District Court. Shortly after leaving the D.C. Court to become Chief Justice, John Roberts wrote a law review article noting that one-third of the cases the court takes deal with federal agency decisions, and two-thirds involve the federal government in some civil capacity. By contrast, only 5 percent of cases nationally do. The D.C. Circuit, he concluded, is "a court with special responsibility to review legal challenges to the conduct of the national government."

That's why its judges are disproportionately likely to end up on the Supreme Court. In addition to Roberts, Ruth Bader Ginsburg, Clarence Thomas, and Antonin Scalia all served on the D.C. Circuit before being elevated to the Supremes. In 1999, Associate Justice Elena Kagan was nominated for a spot on the Court but didn't get a Senate vote; the seat ended up going to Roberts. The other four members of the court served on other Courts of Appeals (Breyer at the First Circuit, Sotomayor at the Second, Alito at the Third, and Kennedy at the Ninth); the D.C. Circuit, then, has as many justices as all other Circuits combined.

Okay, okay, it's important. How does the D.C. Circuit look now? Is it liberal, conservative, what?

D.C. Circuit Court judge Janice Rogers Brown, who faced a tough confirmation battle in 2005. (Douglas Graham/Roll Call/Getty Images)

Of the eight active judges on the court now, half were appointed by Democratic presidents, and the other half were appointed by Republicans. The Republicans include one George H.W. Bush appointee, Karen LeCraft Henderson, who The New Republic's Jeffrey Rosen has described as "extremely conservative," and three George W. Bush appointees: Janice Rogers Brown, Brett Kavanaugh, and Thomas Griffith. The Democrats are three Clinton appointees — Merrick Garland, David Tatel, and Judith Rogers — and Sri Srinivasan, an Obama appointee confirmed earlier this year. Of the six senior status judges on the court — who sometimes hear cases – five were appointed by Republicans.

Okay, so some solid conservatives and some moderate liberals. Three Obama picks would mean a solid liberal (or at least moderate liberal) majority among active judges, right?


Judge Sri Srinivasan (Washington Post)

Bingo. That's the argument sometimes invoked by Republican Senators in explaining why they want to eliminate the three seats, rather than approve Obama picks for them. "Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch," Grassley said before voting Srinivasan out of committee. "In regard to further nominees to this court, there’s going to be a need to show the seats need to be filled. And, that’s going to be a tough row to hoe, especially when members on the other side were convinced seats didn’t need to be filled a few years ago."

He's referring to both the battles over nominees like Brown during the Bush administration as well as the unanimous Democratic support in the Senate for the Court Security Improvement Act of 2007, which removed one seat from the D.C. Circuit. Grassley and other supporters of eliminating seats point both to that precedent and to the comparatively light workload for the D.C. Circuit compared to other Courts of Appeals.

Then again, critics of Grassley note that the court's workload has increased since that bill was passed, and the cases it deals with are frequently more complex than those other courts face. It also, for all intents and purposes, can't hear cases en banc, or as a whole rather than as a panel of three, as doing so would entail getting at least five judges to agree to hear it en banc. That means unanimity of the judges who weren't on the initial panel that considered the case, assuming the panel doesn't want to rehear the case.

What sorts of cases is this going to affect?


Obama's EPA director nominee Gina McCarthy, whose life the D.C. Circuit could make very difficult if it so chooses. (Alex Brandon / AP)

Perhaps the biggest have to do with environmental regulations and Dodd-Frank law implementation.

Last year, the EPA proposed standards for new power plants that would basically make it impossible to build more coal plants going forward, though the rules have been delayed and may be changed. It's also going to issue rules limiting emissions from existing power plants that, if sufficiently aggressive, could lead to huge cuts in emissions. For example, the National Resources Defense Council has proposed a plan that would reduce total U.S. carbon emissions by 10 percent, and power plant emissions by 26 percent. Given the small chance of Congress passing a cap and trade system or carbon tax, this and other elements of the climate plan he laid out in June could be the most significant action on climate change to come out of Obama's presidency.

Court challenges to those rules are expected. The initial form the new plants rule took garnered some criticism. One energy industry lawyer, for instance, told Brad, "A lot of people, myself included, think this approach is almost certain to get struck down in court." And as with most regulatory appeals, those cases are likely to go to the D.C. Circuit. That's why Jonathan Chait has argued that the D.C. Circuit Court nomination battles are really, at the end of the day, about climate change.

Meanwhile, as Haley Sweetland Edwards has explained in her great piece on the financial regulatory process, most of Dodd-Frank needs agency action to take effect. That process is heavily influenced by pressure from financial industry lobbyists, and even when regulations are approved by agencies, they're often in danger of being struck down in court.

For example, a rule the Commodities Futures Trading Commission establishing "position limits" — which constrain the amount bankers can bet on commodities, and are meant to tamp down on speculation and reduce the amount of risk banks take on - was struck down by the D.C. Circuit, in a ruling turning on the meaning of the phrase "as appropriate." More cases like that are expected, and having three Obama appointees in place to rule on them could result in less pro-industry rulings going forward.

Whoa, that's basically Obama's whole non-health care policy agenda right there.


Yeah…pretty much. (REUTERS/ Jason Reed)

I know, right?

So why didn't he appoint people earlier?

A very good question, but one without a lot of good answers. In late 2010, Obama did appoint Caitlin Halligan, a New York litigator who is now general counsel for the Manhattan DA's office, to Roberts' old spot. But her nomination languished, and earlier this year Republicans successfully filibustered an attempt to bring her up for a vote. Grassley objected to work Halligan did as New York State's solicitor general targeting gun manufacturers. Shortly thereafter, she asked Obama to withdraw her nomination.

But it took Obama a year and a half to nominate Halligan, and until June 2012 to nominate Srinivasan, whose seat was vacant when Obama took office. And that leaves two seats that he hasn't nominated anybody for. Indeed, as the above chart from a recent Congressional Research Service report shows, Obama hadn't nominated anybody to fill 10 out of the 17 existing appeals court vacancies at the end of his first term, or 40 out of the 64 district court vacancies.

That's why some liberals have criticized Obama for dawdling on nominating federal judges. One likely reason is vetting concerns. Obama's administration has a notoriously lengthy and grueling vetting process for both judicial and executive nominees.

Is he actually dawdling?


Douglas Ginsburg, a D.C. Circuit judge who took senior status in 2011 and whose spot has still not been filled. (NYU Law)

Yes. Russell Wheeler at the Brookings Institution has a fantastic infographic showing that Obama took longer than Bush to appoint both district court and appeals court judges, and unlike Clinton and Bush, he had more vacancies after his first term than were there when he took office.

Then again, the average time from nomination to vote and confirmation rate has increased for district court nominees (though not for appeals court nominees), compared to under Bush, which one can probably attribute to Senate objections. It's worth keeping in mind, though, that Bush faced a Democratic Senate for many of his years in office, and Obama has always had a Democratic majority (and for a while had a filibuster-proof one), which should boost his confirmation rates:


What could speed this along?


Sen. Harry Reid has suggested he may be ready to kill the judicial fililbuster. (The Washington Post)

Well, Obama could submit more nominees to fill vacancies, for one thing; the nominations of Millett, Pillard, and Wilkins was a big step there. But some groups are also pushing for filibuster reforms that would make confirming those nominees easier. Nan Aron of the Alliance for Justice, a longtime liberal court observer and veteran of many confirmation battles, said after Halligan's failure to break a filibuster, "It is still another indication, as if any were needed, that Senate Democrats need to revisit Senate rules reform, and stand up to the tyranny of the minority."

Senate Majority Leader Harry Reid agrees, and very nearly changed the rules in July, before coming to a last-minute agreement wherein Republicans agreed to let a number of nominees through. But with the filibusters of Millett, Pillard, and Wilkins, that agreement is under strain, and changing the rules is starting to look more attractive to Democrats.

Wait, didn't we see this before?

Sen. Trent Lott (R-MS), center, coined the term "nuclear option." (Matthew Cavanaugh-Getty Images)

Yep. There was discussion of changing  the Senate's rules by a simple majority vote to ban judicial filibusters in 2005, when Senate Majority Leader Bill Frist grew frustrated with the Democratic minority's repeated filibusters of appeals court nominees like Brown. This option was first raised in 2003 by then-Senator Trent Lott, who gave it the "nuclear" appelation.

Is that allowed? I thought you could only change the rules on the first day.

Senate president pro tempore Patrick Leahy (D-VT) would likely take lead on changing the Senate filibuster rules. (Melina Mara/The Washington Post)

That's a myth, actually. As the University of Miami's Greg Koger explains here, there are a number of ways the Senate can change its rules mid-session.

The most prominent, detailed in this CRS report, is for the Senate to declare the filibuster unconstitutional. One way for this to happen would be for the presiding officer — most likely Vice President Biden or Senate president pro tempore Pat Leahy — to declare it unconstitutional, either in whole or in part (for example, for just judicial and executive nomination). That's a break with Senate precedents, by which the body as a whole has to decide constitutional issues. A Republican Senator would likely appeal, and then a Democratic Senator would move to table the appeal, which would then go to a majority vote of the chamber. If a majority tables the appeal, the filibuster is effectively amended or ended.

Alternately, a Democratic Senator could submit a point of order that the filibuster is unconstitutional (in whole or in part), after which the presiding officer would submit the question to the Senate as a whole. Usually, such a question would be subject to debate, but the presiding officer could break precedent and declare it undebatable. A Republican Senator would likely appeal, and then another Democratic Senator would motion to table that appeal, which would go to an immediate vote. If a majority votes to table, the Senate would proceed to vote on the original motion to declare the filibuster either wholly or partially unconstitutional. If a majority votes yes, the filibuster is amended or ended.

But Koger notes there are ways to change the rules without making any declarations about constitutionality. For example, the Senate could set a precedent whereby motions to suspend the rules are nondebatable, and only require a majority vote. That way, whenever there's a threat of a filibuster, the majority could just move to suspend the rules and proceed to a final vote, a move which would succeed as long as a simple majority is in favor. Boom, filibuster ended.

Now, it's definitely more straightforward to change the rules on the first day, as the Senate can simply decide that the previous Congress's rules are not yet in effect and move to adopt new ones by a simple majority vote. But there's nothing stopping Harry Reid from changing the rules whenever if he's got 51 votes with which to do it.

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Neil Irwin · November 18, 2013