Immediately after that vote, Obama’s bid to place Patricia Millett on the U.S. Court of Appeals for the District of Columbia Circuit fell five votes shy of 60, leaving the prominent Supreme Court lawyer caught in a filibuster that has nothing to do with her qualifications for the post.
Just two Republicans supported Watt’s and Millett’s nominations. After the vote, Vice President Biden and Senate Majority Leader Harry M. Reid (D-Nev.) raised the prospect of having another fight over changing rules to eliminate filibusters, at least on nominations.
Reid technically voted with Republicans in supporting the filibuster, but that was done merely to reserve a procedural right so that he could quickly call up the nominations for votes again without parliamentary hurdles. Several hours after the vote, Reid issued a statement with a thinly veiled warning suggesting that he would bring up the nominations again in the “very near future,” suggesting a new rules fight was in the offing.
“Something has to change, and I hope we can make the changes necessary through cooperation,” he said in his statement.
Republicans acknowledged that they would confirm someone with Millett’s experience to just about any other federal court — she is viewed as an accomplished appellate court lawyer and has argued 32 cases before the Supreme Court — but not the important D.C. federal court.
“The court is currently comprised of four active judges appointed by Republican presidents and four active judges appointed by Democrat presidents. There is no reason to upset the current makeup of the court, particularly when the reason for doing so appears to be ideologically driven,” Sen. Charles E. Grassley (Iowa), the top Republican on the Judiciary Committee, said during floor debate.
There are three vacancies, including the seat that Millett has been nominated to fill, but Republicans say that the court’s caseload is not heavy enough to warrant appointments ahead of other appeals court circuits. However, the tilt of the court leans more conservative when six senior judges — five of whom were appointed by Republicans — are included in that court’s mix. Those judges continue to hear some cases.
Grassley has proposed legislation that would reduce the size of the D.C.-based appeals court, and some Republicans said they would be willing to consider supporting Millett’s nomination after a broader negotiation over the size of each federal appellate court.
A number of Republicans said in recent days that Watt — a senior member of the House Financial Services Committee — does not have the experience to oversee an institution as large as the Federal Housing Finance Agency.