It was almost as if Patricia Millett didn't have to show up for her confirmation hearing Wednesday on Capitol Hill. The fight about her nomination to the U.S. Court of Appeals for the D.C. Circuit isn't about her.
There was no dispute among members of the Senate Judiciary Committee that Millett, an Akin Gump Strauss Hauer & Feld partner who has argued 32 cases before the U.S. Supreme Court, has the credentials and experience to serve on a bench that's often considered the nation's second highest court.
Still, Millett spent much of the time listening to Republicans explain the political rationale behind why they will fight against her confirmation in addition to two other pending D.C. Circuit nominees. Senator Ted Cruz (R-Texas) spent about five minutes today laying out exactly where Millett stands, "irrespective of your very fine professional qualifications."
"You find yourself in the midst of a broader battle. And a battle on issues many of which are unconnected to your professional background qualifications, but issues sadly that have consumed the D.C. Circuit for decades," said Cruz, who said he has known Millett for a long time.
"There is a lot of political games when it comes to judicial nominations, both sides have decried the political games," Cruz said during the committee hearing. "But unfortunately the D.C. Circuit has been a battleground on both sides, for the politicization of judicial nominations."
So Millett spent about an hour answering standard questions from senators about her background, her judicial philosophy and whether her experience defending businesses would color her views.
She got laughs in an exchange with Senator Al Franken (D-Minn.) about how she was no longer the woman with the most arguments before the U.S. Supreme Court—that's Lisa Blatt of Arnold & Porter—and described how a good appellate lawyer needed to interrupt Supreme Court justices to get her point across during oral arguments.
Millett spoke about how her approach to the law would not be affected by her strong Christian faith, after using her opening statement to introduce the pastor of her church along with her family members in the audience.
"My religious faith is the biggest part of who I am and I’m proud of that and it is something that’s incredibly important to me," Millett said. "But our constitution is a very precious system of justice that it creates. And it creates judges to decide cases based not on personal views, not on background, but based on rule of law."
The committee's Republican members had a focus other than Millett, the first of three D.C. Circuit nominees to get a hearing on Capitol Hill. Obama struck a more aggressive tone in June with a Rose Garden announcement to appoint Millett, Cornelia Pillard and U.S. District Judge Robert Wilkins to the appellate court. The move could ultimately determine the size of the imprint his presidency leaves on the nation's courts.
Republicans on Wednesday described political spats about D.C. Circuit nominees that reach all the way back to 2005, with the Democrats blocking the nominations of Peter Keisler, co-chair of Sidley Austin's appellate practice, and Miguel Estrada, a leader of Gibson, Dunn & Crutcher's appellate and constitutional law group.
Senator Chuck Grassley (R-Iowa), who introduced a bill that would strip the D.C. Circuit of its three vacant judgeships, argued today that caseload statistics show the D.C. Circuit isn’t busy enough to need any more judges. He spoke about how the committee needs to study the issue. Grassley said the committee is rushing Millett's nomination through the process.
Grassley pointed out that Democrats made the same arguments about caseload data when it came to arguments against George W. Bush's nominees to the D.C. Circuit, and not much has changed in terms of workload.
Millett heard Senator Mike Lee (R-Utah) compliment her work history and then explain how President Barack Obama is trying to pack the D.C. Circuit to get more favorable rulings about federal agency administrative actions, even though the court "simply does not need an additional judge at this time."
And she heard Cruz explain exactly why he feels Republicans must prevent Obama's nominees to the D.C. Circuit, even though he would prefer judges are confirmed irrespective of the committee's decade-long history of politics with D.C. Circuit nominees.
"It is not consistent with our responsibility to allow one party to prevent qualified judges from going to the court and at the same time to enable packing the court to reach preferred outcomes," Cruz said.
Millett got support in the Capitol Hill hearing room from a number of Akin Gump lawyers, including partner Joel Jankowsky. Millett hugged with family and friends in the hallway after the hearing.
Judiciary committee chairman Senator Patrick Leahy (D-Vt.) said he will try to hold a vote on Millett's nomination as soon as possible.