The Senate today blocked the nomination of Patricia Millett for the U.S. Court of Appeals for the D.C. Circuit, throwing doubt on the ability of President Obama to fill three vacancies on the key court.
Millett's qualifications to serve on the bench were never an issue between Democrats and Republicans. Millett, an Akin Gump Strauss Hauer & Feld partner, has argued 32 times before the U.S. Supreme Court. She was the first of Obama's three simultaneous nominees to the court to come up for a vote in the Senate.
Republicans argued the D.C. Circuit does not need any more judges, and accused Obama of trying to stack the D.C. Circuit—the 11-member court has three vacancies—to win more favorable rulings on federal agency administrative actions.
Millett's nomination needed 60 votes to overcome a Republican block and advance in the Senate. The 55-38 vote, with three senators responding present, meant that she could not get an up-or-down confirmation vote.
The move today could reignite a Senate debate over changing the rules about filibusters. Sen. Patrick Leahy (D-Vt.) today repeated his position—before the vote—that blocking Millett could cause Democrats to use 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.
"If the Republican caucus finds that despite her stellar legal reputation and commitment to her country that somehow a filibuster is warranted, I believe this body will need to consider anew whether a rules change should be in order," Leahy said before the vote.
Had she been confirmed today, Millett, an Akin partner since 2007, would have been the sixth woman to sit on the D.C. Circuit—a bench that's often considered the nation's second highest court and has produced U.S. Supreme Court justices. The court's rulings on environmental law and regulation have national sweep.
Obama has only placed one judge on the D.C. Circuit in nearly five years in the White House. In May, the Senate unanimously confirmed Sri Srinivasan, making him the first new judge there since 2006. The White House withdrew the nomination of Caitlin Halligan for the D.C. Circuit in March, ending a nomination process that lasted more than two years because of constant opposition from Republican senators.
The reaction to the Millett vote from progressive legal advocacy groups was swift, with People For the American Way calling it "scorched earth" politics from the same party that brought the government shutdown.
"The GOP's unprincipled blockade of D.C. Circuit nominees is unprecedented, and it's shameful," Marge Baker, PFAW's executive vice president, said in a written statement. "Instead of giving Patricia Millett, Nina Pillard and Robert Wilkins fair hearings and yes-or-no votes, Republicans are blocking all three just to keep President Obama from fulfilling his Constitutional obligation to fill existing vacancies on the critically important federal courts."
Alliance for Justice was among the other groups who say this should prompt changes in the Senate filibuster rules.
"Make no mistake: this vote wasn't about the impeccable qualifications of Patricia Millett, nor was it about the current caseload on the D.C. Circuit," AFJ President Nan Aron said in a written statement. "Rather, Republicans are desperate to thwart President Obama's efforts to carry out his duty under the Constitution to fill judicial vacancies.
"This unprecedented obstruction cannot stand," Aron said. "If an extremist minority in the Senate insists on imposing their own ideological agenda through an abuse of Senate process, then Senate rules must be changed to ensure that qualified nominees get a yes-or-no vote."
At Millett's confirmation hearing before the Senate Judiciary Committee in July, there was no dispute among members about her credentials. Senator Ted Cruz (R-Texas) spent about five minutes laying out where Millett stood, "irrespective of your very fine professional qualifications."
"You find yourself in the midst of a broader battle," Cruz told her at the hearing. "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."
Cruz was one of four senators who did not vote on Millett's cloture motion today, along with Sen. Jim Inhofe (R-Okla), Sen. Barbara Boxer (D-Calif.) and Sen. Mike Enzi (R-Wyo.)
At the same July hearing, Senator Chuck Grassley (R-Iowa) introduced a bill that would strip the D.C. Circuit of its three vacant judgeships. It has been co-sponsored by all the Republican members of the judiciary committee.
Several Republicans say the eight D.C. Circuit judges—split evenly between Democrat and Republican appointees if you don't count senior judges—can handle the current caseload, and that each new judge would cost taxpayers approximately $1 million per year.
Millett was considered the least controversial of the three nominees to the D.C. Circuit. Obama struck a more aggressive tone in June with a Rose Garden announcement to appoint Millett, Georgetown University Law Center professor Cornelia Pillard and U.S. District Judge Robert Wilkins to the appellate court.
The outcome could ultimately determine the size of the imprint his presidency leaves on the nation's courts.