WASHINGTON -- The Senate is inching closer to a knock-down, drag-out fight over confirming nominees to the U.S. Court of Appeals for the D.C. Circuit -- a top priority for President Barack Obama that some Republicans are determined to sink.
Senate Majority Leader Harry Reid (D-Nev.) filed a procedural motion on Monday to begin debate on one of Obama's three nominees to the court. Specifically, Reid filed a "cloture" motion on D.C. appellate lawyer Patricia Millett, which sets her up for a confirmation vote later this week.
A top Senate Democratic aide who requested anonymity in order to speak candidly predicted "a big fight" once the D.C. Circuit nominees hit the floor, but said the "word is that we and [the White House] are ready to fight hard." Reid has said that Democrats are focused on getting at least one more judge confirmed to the court, and has hinted at changes to Senate rules if Republicans stage a filibuster.
The court currently has four Democrat-appointed judges and four Republican-appointed judges, with three empty slots and three Obama nominees waiting on the sidelines. Two of the nominees -- Millett and Nina Pillard -- cleared the Senate Judiciary Committee months ago and have been awaiting floor votes. The third nominee, Robert Wilkins, is set for his committee vote on Thursday.
While partisan scuffles over Obama's nominees are nothing new, his picks for the D.C. Circuit are particularly key to his legacy. The court has broad power to review federal regulations and is considered second only to the Supreme Court in terms of its stature. The D.C. Circuit has also been a launching pad for the Supreme Court: four sitting Supreme Court justices once served on it.
Senate Republicans routinely argue that there's no need to fill the vacancies on the court. The court isn't busy enough, some say, to warrant having all 11 of its seats, and thereby should lose those slots waiting to be filled. Others have falsely accused the president of "court-packing." Earlier this month, GOP senators repeated those arguments to The Huffington Post.
"We do not need these judges. It's just plain as day," said Sen. Jeff Sessions (R-Ala.), a member of the Senate Judiciary Committee. "They have, by far, the lowest caseload per judge. They take the summers off."
"It's clear they're trying to pack the D.C. court," said Sen. Orrin Hatch (R-Utah), also a member of the committee. "It's probably the most important appellate court in the country ... so there's a matter of great concern."
Both predicted Republicans will use any procedural or tactical means that they can to block the nominees.
"I'm going to fight as hard as I can," Sessions said.
Sen. John Cornyn (R-Texas) reiterated his party's complaints last week in a FoxNews.com op-ed.
"Republicans should remain united in blocking Senate Majority Leader Harry Reid’s attempt to pack the D.C. Circuit Court of Appeals, which is America's second-most-influential judicial body," Cornyn wrote.
But GOP charges of "court-packing" are factually incorrect. The term is used to describe an attempt to increase the number of judges on a court with the goal of shifting its political balance, not to fill existing vacancies. One could even make the case that GOP efforts to prevent Obama from filling empty court seats, thereby keeping those courts from having judges appointed by a Democrat, are instances of "court-unpacking."
Plenty of other notable voices make the case for filling the court. Patricia M. Wald, a retired judge who served on the court for 20 years, highlighted the court's particularly complex and time-consuming caseload in a Washington Post op-ed. Sid Shapiro, an administrative law expert and Center for Progressive Reform member scholar, said the average number of cases before the court is actually up, from 1,152 cases during the Bush administration to 1,362 under Obama.
Also an advocate of filling the court's empty slots: Supreme Court Chief Justice John Roberts. He signed off on an April 5 report by the Judicial Conference of the United States that recommends keeping the court at 11 seats. Sessions, for one, hadn't heard about Roberts' recommendation.
"I want to see that quote. Where'd he say that?" Sessions asked, jumping out of an elevator he'd just hopped into. When HuffPost cited the April 5 report, Sessions grumbled about Roberts not being a real Republican.
"He's always advocating the court. He wants pay raises for staff," he said. "Otherwise, he's supposed to be conservative."