On Monday, the U.S. Senate is scheduled to vote on the confirmation of Patricia Millett, an experienced Supreme Court advocate, as a judge on the nation’s second-most-powerful court.
The next day, in a reminder of the importance of the U.S. Court of Appeals for the District of Columbia Circuit, the Supreme Court will hear an appeal of a decision by two of the lower court’s Republican appointees that swept away one of the Environmental Protection Agency’s key air quality rules.
The impending confirmation of Millett and two additional Obama nominees to the D.C. Circuit, expected by Christmas, will mean seven Democratic-appointed full-time judges compared with four Republican-appointed ones on a court that hears many of the most important cases on the powers of the federal government.
The court has been evenly composed of Democratic- and Republican-appointed judges since Sri Srinivasan was confirmed in May.
Senate Democrats last month voted to abolish the filibuster for most federal judgeships, obliterating a long-standing Senate rule that Democrats also had used during Republican presidencies to keep people they considered extreme off the lower courts.
Many liberals hope that President Obama and the Democratic-controlled Senate will take the opportunity to fill numerous judicial vacancies nationwide without having to worry about Republican filibusters.
Initially, however, the effect on the D.C. court, if any, may be modest. Unlike most federal appeals courts, the D.C. Circuit rarely meets as a group to issue opinions. But like other such courts, it issues most of its decisions in three-judge panels.
Close observers of the D.C. Circuit say the addition of Millett, plus Georgetown University law professor Nina Pillard and U.S. District Court Judge Robert L. Wilkins — who personally won a landmark settlement against the Maryland State Police for racial profiling — will over time counter the rising influence of two arch-conservatives appointed by President George W. Bush.
The observers, who did not want to be identified discussing the inner workings of the court, said the arrival in 2005 and 2006, respectively, of Janice Rogers Brown, a former California Supreme Court justice, and Brett Kavanaugh, a former top Whitewater prosecutor, changed the internal dynamics of the court.
Brown and Kavanaugh have been outspoken dissenters, which some feel has disturbed the tradition of comity on the court. And on panels where they teamed with fellow Republican appointees to form a majority, as in the EPA case, they managed to pull the court’s decisions to the right.
The arrival of three Obama-appointed judges probably will change that, White House Counsel Kathryn Ruemmler said. “I think it’s really great for a very important court that decides issues of national importance,” she said.
Theoretically, the change in the filibuster rule will also improve Obama’s ability to influence other appeals courts and district courts across the country. But in most states, he is encountering a new problem. Republicans are retaliating for the filibuster rule change by using another powerful tool to block nominees to other courts.
The reason is another arcane Senate tradition called the blue slip, for the colored piece of paper that both senators of a nominee’s home state are asked to return to a Senate committee considering a nominee from that state.
An unfavorable comment from a nominee’s senator, or no opinion at all, has traditionally been enough to prevent a hearing and kill a nomination. And with at least one Republican senator in 31 states, some instances of withholding blue slips have emerged since the filibuster rule was changed. Republican senators in Arizona are trying to block approval of judges they had previously recommended.
“The reforms were wonderful, but no one thinks they ended anything,” said Nan Aron of the liberal lobbying group Alliance for Justice. “The fight goes on because the stakes are so huge.”
Even the White House acknowledged that, despite all the hoopla about Obama’s potential ability to remake the federal judiciary, Republicans’ hold over the confirmation process has only been loosened, not broken.
“The filibuster rule itself was not . . . the only source of obstruction,” Ruemmler said. “I think in many ways the blue-slip rule is more problematic.”
Pressure is mounting on Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) to follow the filibuster change with modifications to the blue-slip tradition. Leahy has said he would continue to observe the tradition unless Republicans “abuse” their prerogatives.
But Ruemmler predicted the White House would have an easier time confirming judges in liberal states such as California, New York and Maryland. In those states, there would be no impediment to nominating progressive judges who would not have been nominated previously because of fears they could not be confirmed.
“I think that it will make a pretty significant difference for courts of appeal from states with two Democratic senators,” Ruemmler said.