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The highest court in America has been in the spotlight lately. Following its historic decisions on marriage equality and voting rights, Americans recognize the importance that the Supreme Court’s decisions can have on our lives as well as the power they have to shape our country’s future.
But what about America’s second-highest court?
The Court of Appeals for the District of Columbia Circuit, a unique federal court based in the capital, is responsible for deciding extraordinarily complex and nationally significant cases. This court essentially oversees the actions of federal agencies, reviewing policies on issues like consumer safety, environmental protections, voting rights, food safety, national security, and workers’ rights.
While the Supreme Court can choose to have the last word on any case in the federal court system, it hears very few cases each year. In reality, it’s the D.C. Circuit that often has the final say on hugely important issues.
Yet that court is now operating with three of its 11 active judgeships vacant.
Recognizing the need for this court to be operating at full capacity, President Barack Obama has taken a step toward filling these vacancies by nominating three highly qualified individuals to the court’s empty seats. The nominees are impressive Georgetown Law professor Cornelia “Nina” Pillard, renowned appellate attorney Patricia Millett, and respected federal judge Robert Wilkins. These three nominees — two women and an African-American man — have had exceptional careers and would bring important racial, gender, and career diversity to the federal bench.
Pillard, for example, has distinguished herself in both the legal and academic realms. As a litigator, she won the Supreme Court case opening the Virginia Military Institute to women. As a professor at Georgetown Law School, she runs Georgetown’s Supreme Court Institute, which helps any attorney seeking assistance in preparing for arguments before the Supreme Court, regardless of who they represent, and without charge. The Institute is so well-regarded that it helped attorneys in every single Supreme Court case last term.
Obama did his job by selecting these three exceptional nominees. Some senators, however, are threatening to refuse to uphold their end of the constitutional bargain.
Even before Obama picked these nominees, powerful Senate Republicans were threatening to filibuster anyone that the president nominated. Making the absurd accusation that nominating anyone to an empty seat on the D.C. Circuit constitutes “court packing,” Republicans are arguing that the current eight active judges are enough, no matter how well-qualified the nominees are. This is a tough argument to make when Congress has created 11 judgeships to carry out the court’s work.
When the situation was reversed, however, the Republicans were singing a different tune. In 2005, when the caseload was lower than today, the Senate’s GOP wing pressed its Democratic colleagues to confirm a number of nominees to vacancies on the D.C. Circuit, filling the ninth, tenth, and eleventh seats. The only difference was that George W. Bush was the one making the nominations.
When asked about one of the nominees to these three vacancies, Senator Orrin Hatch (R-UT) said, “I have no objection to her personally…I think she’s probably well qualified.” Yet Hatch, like many of his colleagues, hasn’t said whether he’ll even allow a yes-or-no vote on her nomination in the Senate, or if he’ll be joining the filibuster that his party has been threatening.
Hatch’s words perfectly illustrate how far Senate Republicans have allowed partisan politics to distort the confirmation process. It’s no longer a question about whether a particular candidate is qualified to serve. Instead, the entire process is ruled by which side of the aisle a lawmaker sits on.
Senate Republicans can reverse this trend by allowing fair yes-or-no votes on all three D.C. Circuit nominees. What we need from Congress is meaningful governance, not mindless gridlock.
