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. Slate’s 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.