For several months now, the Obama administration has been promising that while it had been slow to nominate judges during Obama’s first term in office, the second term would be different. Well, today the president nominated three individuals to fill the existing vacancies on the Court of Appeals for the DC Circuit. The nominees–Cornelia T. L. Pillard, Patricia Ann Millett, and Robert L. Wilkins–offer diversity in the way that so many people have to come to define diversity. More specifically, they would add two women and an African-American man to what is widely considered the second most powerful court in the country. But they also bring some much-needed diversity in a less appreciated sense: their prior work experience. Pillard, for one, has a strong track record of litigating against gender discrimination in the workplace. And Wilkins, who currently serves as a federal trial judge, brings twelve years of experience as a public defender, a less common route to the bench than serving as a prosecutor.
The search for some disqualifying datum on each of these nominees has barely begun in earnest, but the sin of being appointed by a Democratic president should suffice for many Senate Republicans. The recent proposal, spearheaded by Iowa’s Charles Grassley, to shrink the DC Circuit from its current eleven seats to eight reflects this kind of thinking. The previously uncontroversial act of nominating people to fill existing vacancies has become, in the Age of Obama, “court-packing,” a term formerly reserved for attempts to manipulate the size of courts for nakedly partisan purposes–kind of like what Grassley’s proposing. And given the willingness of Senate Republicans, Grassley included, to vote for George W. Bush’s nominees for the tenth and eleventh spots on the Court of Appeals, it’s hard to take seriously the claim that workload considerations are driving the proposal when there’s been little evidence that the workload has grown in size or difficulty over the past four years. Grassley’s proposal is quixotic in the sense that it has no prayer of clearing the Senate, but it does signal a new level of bullheaded obstructionism on the part of Senate Republicans.
Whether Senate Democrats will be able to overcome this obstructionism remains unclear. On one hand, Obama’s public appearance with his nominees at the announcement this morning signals a certain urgency about filling these positions, an urgency that progressives have been demanding for years. And Senate Majority Leader Harry Reid is too shrewd (others will disagree with my assessment, I’m sure) to threaten to end the filibuster for judicial and executive branch appointments unless he has some willingness to pull the trigger. Indeed, the threat of the “nuclear option” could serve to prod Republicans into some grudging amount of compromise. At the same time, however, the president and Senate Democrats are wary of escalating partisan rancor at a time when the top legislative priority, immigration reform, is advancing because of rare bipartisan cooperation. And Republicans who vote for immigration reform, contrary to the desires of much of their base, might feel compelled to oppose Obama’s nominees as a way of showing that they haven’t gone soft in their opposition to all things Obama. The problem the White House faces is twofold: (1) voters care much more about immigration than they do about sub-Supreme Court judicial appointments; and (2) some Senate Democrats, fearing powerlessness should their party become a minority, have been reluctant to support filibuster reform. Stay tuned….