Bloomberg News

Obama Appeals Court Picks Shut Out by Senate Republicans (1)

November 19, 2013

President Barack Obama and U.S. District Judge Robert L. Wilkins

The 53-38 roll call yesterday was shy of the 60 votes needed to advance the nomination of U.S. District Judge Robert L. Wilkins, left, to the U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the nation’s second-highest after the Supreme Court. Photographer: Mark Wilson/Getty Images

Senate Republicans blocked the last of President Barack Obama’s three nominees to a federal appeals court that oversees some of the nation’s biggest business cases, dealing a blow to his efforts to reshape the panel.

The 53-38 roll call yesterday was shy of the 60 votes needed to advance the nomination of U.S. District Judge Robert L. Wilkins to the U.S. Court of Appeals for the District of Columbia Circuit, often regarded as the nation’s second-highest after the Supreme Court.

Republicans have accused Obama of trying to fill the court -- which often rules on challenges to government regulations -- with nominees sympathetic to his regulatory agenda. Democrats argue that Republicans are trying to deny Obama the confirmation votes they routinely gave to President George W. Bush.

“This obstruction is completely unprecedented,” Obama said in a statement yesterday, saying he’s “deeply disappointed that Senate Republicans have once again refused to do their job.” He urged the Senate again to take a yes-or-no vote on his judicial nominees.

At stake is the future of a tribunal that has acted as a steppingstone to the Supreme Court. Chief Justice John Roberts served on the D.C. Circuit as did Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg. Two other chief justices, Warren Burger and Fred Vinson served there as well.

Republicans yesterday argued that the 11-member court’s caseload is insufficient to justify filling three vacancies. In a floor speech, Minority Leader Mitch McConnell said Democrats were trying to “concoct a crisis” over the court so they can “distract Americans from the failings of Obamacare.”

‘Manufactured Excuse’

Senate Democrats should instead seek votes to fill vacancies where the U.S. court system has declared a judicial emergency to denote a shortage of judges on courts with overwhelming caseloads “rather than complain about a fake one,” said McConnell, a Kentucky Republican.

Senator Dick Durbin of Illinois, the chamber’s No. 2 Democrat, called the workload argument “a manufactured excuse for them to filibuster an Obama nominee.” Durbin said that when Bush was president “Republicans were eager to confirm nominees for the ninth, 10th and 11th seats on the D.C. Circuit.”

On Oct. 31, the Senate blocked consideration of Washington lawyer Patricia Millett for another vacancy on the court. On Nov. 12, Republicans blocked Georgetown University law professor Nina Pillard’s nomination to a vacancy on the same court.

Senate Rules

The actions have revived a call from some Democrats for a change in the Senate’s rules to ban or curb moves to block judicial and some executive-branch nominees.

Today, Senate Majority Leader Harry Reid told reporters he was “considering looking at the rules” to curb such procedural moves because of the continued obstruction of Obama’s nominees.

Reid said he wasn’t referring to barring such tactics against Supreme Court nominees or legislation. “I am talking about executive-branch nominations,” he told reporters. “I am at the point we need to do something to allow government to function.”

The Nevada Democrat said that Republicans blocked North Carolina Representative Mel Watt’s nomination to lead the agency that oversees government-chartered mortgage finance companies Freddie Mac and Fannie Mae because they oppose the law Congress enacted to regulate financial institutions in the wake of the 2008 financial crisis.

Current Lineup

During almost five years in office, Obama has placed only a single judge, Sri Srinivasan, on the D.C. Circuit. Srinivasan was confirmed in May after Obama’s first nominee, Caitlin Halligan, was blocked by Senate Republicans. They objected to Halligan’s work as New York State’s solicitor general on a lawsuit against handgun manufacturers.

Among the cases being reviewed by the D.C. Circuit is one on the Federal Communications Commission’s “net neutrality” rules requiring Internet-service providers to treat all traffic equally. The court -- where Republicans now have an edge -- also would probably rule on the administration’s proposal to limit carbon-dioxide pollution from power plants.

The court’s current lineup gives Republicans an advantage even though its full-time judges include four appointees from each party. That’s because six senior judges also hear cases, and five of them were selected by Republican presidents.

Party Breakdown

The party breakdown can make a difference when three-judge panels consider high-stakes regulatory cases. When the D.C. Circuit threw out an Environmental Protection Agency rule that would curb emissions from coal-fired power plants in upwind states, the vote was 2-1, with the lone Democratic appointee in the minority.

Democrats prevented a vote on Roberts, when he was first nominated to the D.C. Circuit in 1992 by President George H.W. Bush. Roberts was nominated again by the second President Bush in 2001, winning confirmation only after Republicans took control of the Senate in 2003. Bush elevated Roberts to the Supreme Court two years later.

Democrats stopped two other Bush nominees: Miguel Estrada, an appellate lawyer once seen as a possibility to become the first Hispanic on the Supreme Court, and Peter Keisler, who ran the Justice Department’s civil division.

During a conference call last night hosted by Organizing for Action, the former Obama campaign operation that’s now a nonprofit promoting his second-term agenda, the president accused Republicans of “wholly unprecedented” obstruction.

“It’s really time for Senate Republicans to stop playing partisan politics with our courts,” Obama said.

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net

To contact the editor responsible for this story: Jodi Schneider at jschneider50@bloomberg.net


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