The day before the Senate could vote on the first of President Obama's three nominees to a key federal appeals court, Republicans and Democrats held dueling events on Capitol Hill about whether appeals lawyer Patricia Millett should be confirmed to the bench.
Democrats in the Senate held a press conference today to focus the debate on Millett's legal experience and character, arguing that the Akin Gump Strauss Hauer & Feld partner is well-qualified to sit on the U.S. Court of Appeals for the D.C. Circuit.
Republicans in the House held a hearing to highlight the workload of the current D.C. Circuit judges, restating their view that Millett and two other nominees to the bench are not needed. Republicans in the Senate say Obama wants to tilt the balance of the court, whose non-senior judges are split evenly now between judges appointed under Democratic and Republican presidents.
A vote set which could come as early as Oct. 30 will reveal whether Republicans can block the Senate from voting on Millett, or whether Democrats have enough votes to overcome a filibuster. The result ultimately could determine the size of the imprint Obama's presidency leaves on the nation's courts.
Millett needs 60 votes in the Senate to overcome a block and get an up-or-down confirmation vote, which means Democrats will need several Republican senators to join them.
Senator Chuck Grassley (R-Iowa), who often leads the push against judicial nominees as the ranking member on the Senate Judiciary Committee, said today he does not know whether Democrats will have 60 votes.
"I should know by tonight because they're taking a whip count, but I don't know that whip count. But I have reason to believe they won't get cloture," Grassley said. "That's my gut feeling. I'll have a better answer for you later on."
At a press conference on the Hill today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stood next to a poster with a photo of a smiling Millett embracing her husband, who is wearing a Navy uniform.
If confirmed, Millett, an Akin partner since 2007, would be the sixth woman to sit on the D.C. Circuit—a bench that's often considered the nation's second highest court. Leahy praised Millett's legal experience, which includes arguing 32 times in the U.S. Supreme Court.
"If we were dealing with logic and honesty and what's best for the court, we'd have 100 votes," Leahy said. "I think it would be one of the worst black marks against the court, against the Senate, and a total disregard to the life of this woman if there were no votes."
Leahy said a Republican block on the Millett vote could compel the Democrats to turn to the so-called “nuclear option." Under that scenario, Democrats would try to change long-standing Senate rules to strip the ability of Republicans to filibuster nominations.
"I don't believe it will be, but if it were successfully filibustered, I think that the pressure to change the rules would be almost insurmountable," Leahy said.
Republicans elaborated on their theory that President Barack Obama is trying to stack the D.C. Circuit—the court has three vacancies—to win more favorable rulings on federal agency administrative actions.
Although the House Judiciary Committee does not have a say in the judicial confirmation process, Chairman Rep. Bob Goodlatte (R-Va.) held a hearing titled "Are More Judges Always the Answer?" and invited Grassley to testify.
Goodlatte suggested that Obama and Senate Democrats view the courts as an opportunity to advance a political agenda. "When the Senate Majority Leader said, 'We're focusing very intently on the D.C. Circuit' and 'We need at least one more. There's three vacancies. And that will switch the majority,' he clearly wasn't referring to the court's needs," Goodlatte said.
National Law Journal photo by Todd Ruger: Leahy and other Democratic senators speak at a press conference about Millett.