Obama’s New Tactic: If You Don’t Eat Your Meat, You Can’t Have Any Pudding

Moshe Z. Marvit June 5, 2013

In a June 4, 2013 event in the Rose Garden, President Obama nominates Patricia Ann Millett (R), Cornelia T. L. Pillard (2nd L), and Robert L. Wilkins (L) to fill the remaining vacancies on the D.C. Circuit Court of Appeals. (Jim Watson/AFP/Getty Images)

As reporters gath­ered at the White House Rose Gar­den on Tues­day to watch Pres­i­dent Oba­ma nom­i­nate three jus­tices to D.C. Cir­cuit Court of Appeals, there was pal­pa­ble excite­ment. Slates Emi­ly Bazelon wrote of how she hummed the chant, Be Aggres­sive! B‑E Aggres­sive! B‑E-A-G‑G … ” as she watched Oba­ma final­ly push­ing back against Sen­ate Repub­li­cans over their fil­i­busters of his judi­cial and cab­i­net appoint­ments. NPR’s Scott Hors­ley report­ed that Oba­ma may be out­ma­neu­ver­ing Repub­li­cans: By announc­ing these new nom­i­nees all at once, Oba­ma is essen­tial­ly dar­ing Sen­ate Repub­li­cans to raise objec­tions to all three.”

The idea is that the nom­i­na­tions will force Repub­li­cans’ hand. If they fil­i­buster Obama’s nom­i­nees then it will serve as a ral­ly­ing cry for fil­i­buster reform; if they allow a con­fir­ma­tion vote, then Oba­ma will have sig­nif­i­cant­ly changed the bal­ance on the D.C. Circuit.

Though the D.C. Cir­cuit is one of 12 region­al cir­cuit courts across the coun­try, it has unique reach and influ­ence, with broad juris­dic­tion over any mat­ter before fed­er­al agen­cies and a rep­u­ta­tion as a train­ing ground for the Supreme Court. Nine of 14 cur­rent judges were appoint­ed by Pres­i­dents Rea­gan, George H.W. Bush and George W. Bush, and the court is over­whelm­ing­ly Repub­li­can. Over the past few years, the court’s con­ser­v­a­tive opin­ions — such as their rejec­tion of the president’s recess appoint­ments — have, iron­i­cal­ly, entailed the sort of judi­cial activism that Repub­li­cans loud­ly claim to oppose. The cumu­la­tive effec­tive of these deci­sions has been to dis­rupt long­stand­ing views on sep­a­ra­tion of pow­ers and fed­er­al regulations.

At Slate, Bazelon laid out the three pos­si­ble out­comes of Obama’s move: Repub­li­cans fil­i­buster all three nom­i­nees, and noth­ing hap­pens; Repub­li­cans fil­i­buster one of the nom­i­nees and let the oth­ers through; or Repub­li­cans fil­i­buster all three and the Democ­rats final­ly break and push real fil­i­buster reform. 

How­ev­er, there is a fourth option that is most like­ly: If Repub­li­cans con­firm all three, Oba­ma will have cre­at­ed a new nor­mal — to retain any hope for con­fir­ma­tion, pres­i­dents will have to offer judi­cial nom­i­na­tions as pack­aged” deals.

Obama’s slate of three nom­i­nees to the D.C. Cir­cuit Court hear­kens back to the pack­aged” deals first offered by Bill Clin­ton in 1994 to get Sen­ate con­fir­ma­tion of his Nation­al Labor Rela­tions Board (NLRB) nom­i­nees. Under this mod­el, the Pres­i­dent presents all of his nom­i­nees for joint con­sid­er­a­tion. In prac­tice, this strat­e­gy usu­al­ly means that the pres­i­dent must pick a range of can­di­dates across the ide­o­log­i­cal spec­trum instead appoint­ing the indi­vid­u­als he most wants.

Obama’s line­up of nom­i­nees for the D.C. Cir­cuit Court mim­ics Clinton’s cal­cu­lat­ed tri­an­gu­la­tion. One, Cor­nelia Pil­lard, is a George­town law pro­fes­sor who has dis­tin­guished her­self as a defend­er of lib­er­al caus­es. She has lit­i­gat­ed a vari­ety of race dis­crim­i­na­tion cas­es on behalf of the NAACP Legal Defense Fund; she wrote the brief in the land­mark Supreme Court case that end­ed the men-only admis­sions pol­i­cy of the Vir­ginia Mil­i­tary Insti­tute; and she suc­cess­ful­ly defend­ed the Fam­i­ly and Med­ical Leave Act from con­sti­tu­tion­al chal­lenge. She is the strong lib­er­al voice that the D.C. Cir­cuit needs to bal­ance its cur­rent makeup.

A sec­ond, Robert Wilkins, is a sit­ting judge on the D.C. Dis­trict Court who worked for more than a decade as a D.C. pub­lic defend­er before becom­ing a part­ner at Ven­able LLP, where he prac­ticed white-col­lar defense and com­mer­cial lit­i­ga­tion. He is per­haps most well-known for his role as the lead plain­tiff in a racial pro­fil­ing suit brought against the State of Mary­land. He is the nom­i­nee about whom every­one can find some­thing to like.

The con­ser­v­a­tive of the group is Patri­cia Mil­lett, a part­ner with the law firm Akin Gump. In her role there, she has filed briefs on behalf of the pro-busi­ness and anti-labor Cham­ber of Com­merce and rep­re­sent­ed Star­bucks in its union-bust­ing activ­i­ties. Repub­li­cans will find noth­ing objec­tion­able about Mil­lett, so she is what holds the pack­aged deal togeth­er. If she is in the mix, then Repub­li­cans can­not fil­i­buster the group.

When news broke of the nom­i­na­tions, Repub­li­cans seized it to accuse Oba­ma of court-pack­ing,” a clear ref­er­ence to Pres­i­dent Franklin Roosevelt’s attempt to shift the ide­o­log­i­cal bal­ance of the Supreme Court by expand­ing the court so that the pres­i­dent would add one seat for every sit­ting jus­tice over 70 years old. (Oba­ma reject­ed the par­al­lel, and right­ly so: His strat­e­gy smacks of Clin­ton, not Roosevelt.)

Obama’s tac­tic recalls the line made famous by Pink Floyd: If you don’t eat your meat, you can’t have any pud­ding. If Democ­rats don’t offer Repub­li­can-friend­ly can­di­dates, their more lib­er­al nom­i­nees will nev­er receive a vote in the Senate.

The irony is that just as Oba­ma is ush­er­ing in a pos­si­ble new era of pack­aged deals for the fed­er­al judi­cia­ry, Clinton’s pack­aged deal strat­e­gy is show­ing its lim­its when it comes to the NLRB. After the D.C. Cir­cuit Court inval­i­dat­ed Obama’s Jan­u­ary 2012 recess appoint­ments to the board, the pres­i­dent came back with a pack­age of five mem­bers to the NLRB — three lib­er­al and two con­ser­v­a­tive. Yet all indi­ca­tions are that this new pack­age will be fil­i­bus­tered, because Repub­li­cans see no mer­it in a func­tion­ing NLRB and thus have lit­tle incen­tive to allow a vote. In a way, Repub­li­cans have won a dou­ble vic­to­ry: They’ve cre­at­ed a new norm where Democ­rats are forced to appoint one con­ser­v­a­tive for every lib­er­al judge, and they can still decide to fil­i­buster the entire pack­age. In this strange polit­i­cal moment, we are hail­ing Obama’s bold new strat­e­gy against Repub­li­can intran­si­gence, even as we are simul­ta­ne­ous­ly wit­ness­ing its weakness.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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