Obama to name three nominees to the D.C. Circuit Court of Appeals – will it lead to ‘nuclear’ winter in the Senate?

Posted by AzBlueMeanie:

The United States
Court of Appeals for the District of Columbia Circuit, the second most important court in the land behind the U.S. Supreme Court, had four vacancies until recently when Sri Srinivasan was approved unanimously by the Senate to fill a vacancy that had remained vacant for five years due to GOP obstruction and filibusters of President Obama's judicial nominees. With this thaw, President Obama has upped his game and plans to name three nominees to the remaining vacancies on the court on Tuesday. White House Names Three Nominees To D.C. Circuit Court:

President Obama will announce three nominees to fill vacancies on the
D.C. Circuit Court of Appeals on Tuesday morning, a White House
official confirmed to TPM.

The nominees will be attorney Patricia Ann Millett, Georgetown law
professor Cornelia Pillard and U.S. District Court Judge Robert Leon
Wilkins
.

“Tomorrow, at 10:15 AM in the Rose Garden, the President will
announce his intent to nominate three candidates for the United States
Court of Appeals for the District of Columbia Circuit,” the White House
official said. “Patricia Ann Millet, who has served in Administrations
of both parties; Cornelia Pillard who served as former Deputy Assistant
Attorney General and former Assistant to the Solicitor General; and
Judge Robert Wilkins, who was confirmed unanimously for the D.C.
District Court in 2010.”

Millett is a partner at Akin Gump Strauss Hauer & Feld LLP and
has litigated numerous cases before the Supreme Court and appellate
courts.

Pillard is a law professor at the Georgetown University law center
and has litigated Supreme Court cases, including on behalf of the ACLU
and NAACP.

Wilkins is a district judge in D.C. and was confirmed without any opposition in 2010.

NukeSenate Majority Leader Harry Reid has been making noise for weeks now that he may revisit the filibuster reforms that he thwarted earlier this year in July to deal with the backlog of judicial and executive department nominees held up by GOP obstruction and filibusters. This is often referred to as the "nuclear option," but more accurately should be termed the constitutional option (super-majority votes are not constituionally prescribed for the advice and consent of the Senate on nominees).

Political scientist and Beltway high priest of "centrism" in Washington, D.C., Norm Ornstein, writes at The Atlantic, It Might Finally Be Time for the 'Nuclear Option' in the Senate: Abolishing filibusters for judicial nominees could be dangerous, but Republican obstructionists have left few alternatives:

Watching Sen. Chuck Grassley this week rail against President Obama
for "court packing" made me laugh out loud. I laughed for several
reasons. One was wondering whether a senior senator and longtime member
of the Judiciary Committee really had no idea what court packing is, or
was he reaching for new heights of disingenuousness: How could a move by
a president simply to fill long-standing existing vacancies on federal courts be termed court packing?

I also laughed because it brought back to me the long controversy
over the so-called "nuclear option" to erase filibusters on judicial
nominations that gripped the Senate from 2003 to 2005. Back then, Senate
Majority Leader Bill Frist, frustrated by Democrats' filibusters and
threatened filibusters of Bush Appeals Court nominees Miguel Estrada and
Priscilla Owen (and the fear of a filibuster on a potential Supreme
Court nominee), threatened to change the Senate's rules in midstream by
simple majority, declaring filibusters on judicial nominees as
unconstitutional.

Of course, back then, Democrats ardently opposed the nuclear option
as Republicans supported it. And no doubt the positions, the arguments,
the rhetoric, will be precisely reversed this summer.

Back then, I wrote many columns on the subject, upholding the notion
of filibusters on judicial nominations while advocating reform of the
filibuster. I also expressed grave doubts about the use of the nuclear
option, noting that it would inevitably provoke a strong and sustained
response from the minority, using the many tools available to them in
the Senate to bollix up the works and bring the place to a halt that go
far beyond Rule XXII.

* * *

Recently, a superbly qualified Obama choice for the D.C. Circuit, Caitlin Halligan, withdrew from consideration after a second attempt to get her confirmed failed,
via another Republican filibuster. In the interim, scores of Obama
nominees for District and Appeals Court positions have been delayed for
months or years after formal nomination, through holds and other
obstructionist mechanisms, most of which are related to the threat of a
filibuster. A recent report from the Congressional Research Service by
Barry McMillion notes that Obama's judicial nominees have been delayed
longer than his four most recent predecessors; he is the only president
for whom the average and median waiting time from nomination to
confirmation was greater than a half year
. (I should add that the delays
by the president before nominating judges have been ridiculous.)

At the same time, Republicans have used holds, filibusters, and
threats of filibuster against executive nominees, including Obama
Cabinet choices and scores of others, at an unprecedented level.

* * *

Right now, there are two areas of deep conflict. The first involves the
D.C. Circuit, the most significant Appeals Court, where there have been
four vacancies for a long time (one was just filled with Sri Srinivasan,
in a McConnell move to dial back after the unconscionable filibuster
against Halligan).

* * *

The second area is executive nominations, especially Cabinet-level
nominees for Labor and the Environmental Protection Agency, along with
Richard Cordray's long-standing nomination at the Consumer Financial
Protection Bureau. And the fandango continues, as Sen. Rob Portman,
R-Ohio, is trying to broker a deal to get confirmation for Cordray to
head off a nuclear strike. If McConnell sees Reid's threat as real this
time, expect further negotiations, with several nominations moving
forward in June and July. If McConnell digs in, watch out.

I remain deeply uneasy about a nuclear option, even as I condemn the
unprecedented obstructionist tactics employed in the Senate (which were
also condemned last week by Bob Dole and lamented by John McCain) and
call for deeper reforms, especially on nominations, in Senate rules. The
fallout from such a move is unknown but would be substantial and
deleterious. It would be far better to return to regular order, and to
the use of filibusters as rare events, not routine ones
. But if senators
who know better — like Lamar Alexander, Bob Corker, Susan Collins,
Lindsey Graham, and Saxby Chambliss — jump when McConnell tells them
and continue to obstruct nominations, they should expect to reap the
whirlwind. And they, and their colleagues, will be the ones responsible
for the damage done.

Will it lead to "nuclear" winter in the Senate? It is hard to imagine a Senate even more dysfunctional than the tyranny of the Tea-Publican minority that we have now.

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