White House Eyes Lawyers for D.C. Circuit Vacancies

The White House is evaluating at least four Washington lawyers to fill vacancies on the U.S. Court of Appeals for the D.C. Circuit, a key appellate court that is the centerpiece of the battle between the Obama administration and leading Republicans over judicial nominations.

Several Washington lawyers who specialize in appellate work said the White House is eyeing three veteran U.S. Supreme Court litigators—Patricia Millett of Akin, Gump Strauss Hauer & Feld; David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel; and Cornelia "Nina" Pillard, a former Justice Department lawyer who is now a Georgetown University Law Center professor. U.S. District Judge Robert Wilkins in Washington has also had his name come up as a potential pick, the lawyers said.

A White House spokesman declined to comment on potential nominees. Millett, Frederick, Pillard and Wilkins also declined interview requests on Tuesday. Public scrutiny of the process intensified when The New York Times on Monday first reported the names of three potential nominees.

The Times reported that Obama will nominate three people to the influential court at the same time—a move that could find major opposition from the Senate Republicans who blocked the nomination of Caitlin Halligan, the president's first pick for the D.C. Circuit. Halligan withdrew from consideration in March after Republicans twice blocked a confirmation vote and her nomination languished for almost three years.

Obama hinted at a more aggressive strategy after the bipartisan Senate vote to confirm principal deputy solicitor general Sri Srinivasan to the court on May 23, the first new judge in seven years for the 11-member panel. "The three remaining vacancies must be filled, as well as other vacancies across the country," Obama said in a statement.

However, Senate Republicans including Chuck Grassley (R-Iowa) and Senator Mike Lee (R-Utah) are pressing legislation that would strip those judgeships from the D.C. Circuit and redistribute two of them to other circuits, indicating they would strongly oppose any more Obama nominees for the D.C. Circuit.

Progressive interest groups like the American Constitution Society have been pushing for the White House and Senate Democrats to be more aggressive in filling the bench, and particularly the D.C. Circuit. The court decides many cases on regulations and federal agencies that have national impact, ACS President Caroline Fredrickson said.

"I think it makes it more clear how important the court is," Fredrickson said of a plan to make three nominations at once. "It does bring attention to the court. It's poorly understood how important the court is."

Last week, Senate Majority Leader Harry Reid (D-Nev.) argued that the lack of Obama appointments has left the court unbalanced. He cited the D.C. Circuit's ruling that Obama overstepped his authority using recess appointments to place three members on the National Labor Relations Board in January 2012.

Senate Minority Leader Mitch McConnell (R-Ky.) replied that Reid's remarks that made it clear that "the whole purpose is to stack the court. So the real issue, I guess, is he disagrees with the rulings on the D.C. Circuit."

The leading candidates for the nominations have extensive experience before the U.S. Supreme Court, and work histories that are unlikely to be too controversial during the Capitol Hill nomination process. Leaders of conservative groups that watch the judicial nomination process, like the Judicial Crisis Network, said Tuesday that any opposition to D.C. Circuit picks will much more likely to be about the court than the personalities.

Millett heads Akin Gump's Supreme Court practice and co-heads the firm's national appellate practice, and was once a candidate for a slot on the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. She has been trading back and forth with Arnold & Porter partner Lisa Blatt for the title of the woman with the most oral arguments before the Supreme Court. Currently Blatt is ahead by one, with 33.

Millett was named to The National Law Journal list of 100 Most Influential Lawyers in America this year, and was named by Washingtonian magazine as one of Washington's 100 Most Powerful Women in 2012.

Millett has been involved in high-profile cases in the Supreme Court. She won U.S. v. Stevens in 2010, representing a man who was convicted for selling animal crush videos. The court struck down the law on First amendment grounds, 8-1. Previously, she was an assistant solicitor general who earned a commendation from the Environmental and Natural Resources Division in 2005, according to her firm biography.

She also worked for four years in the Department of Justice's Civil Division, and clerked for two years for the late Judge Thomas Tang on the U.S. Court of Appeals for the 9th Circuit, a President Carter nominee.

Frederick has argued 41 appeals before the Supreme Court, and has won cases there nine years in a row, according to his firm biography. His practice has in recent years turned toward representing plaintiffs, including a major win in 2009 in Wyeth v. Levine—a case that marked a major defeat for Big Pharma.

The win meant that Frederick's client, Diana Levine, whose forearm was amputated because a Wyeth drug was improperly administered to her, would finally receive the $7 million a jury awarded her. It also meant that plaintiffs' lawyers would still be able to sue pharmaceutical companies in state courts in "failure to warn" cases like Levine's.

At the time, Frederick's reputation helped put his name on early lists of possible candidates Obama might pick for solicitor general or a judgeship. Frederick said at the time that he "will do anything I am asked to help the administration to succeed."

Frederick served as assistant solicitor general for five years and is a former law clerk to Justice Byron White, a President John F. Kennedy nominee, and Judge Joseph Sneed, a President Nixon nominee.

Pillard teaches civil procedure and constitutional law at Georgetown Law and is faculty co-director of the Supreme Court Institute, a non-partisan project that assists lawyers from around the country in preparing for Supreme Court arguments, according to her professor biography.

She has briefed more than 25 Supreme Court cases and argued nine before the court. Her biography highlights Litigation highlights include United States v. Virginia in 1996, which opened the Virginia Military Institute to women, and Nevada Dept. of Social Svcs. v. Hibbs in 2003, which sustained Family and Medical Leave Act rights against constitutional challenge.

Pillard participated in a C-SPAN roundtable discussion of the U.S. Supreme Court’s abortion decisions in 2006, and discussed the legacy of Supreme Court Justice Sandra Day O’Connor upon her retirement.

Pillard clerked for Judge Louis Pollak, a Carter nominee. Previously, she was a fellow at the American Civil Liberties Union and litigated individual and class-action racial discrimination cases and appeals at the NAACP Legal Defense and Education Fund, Inc.

Wilkins, a former white-collar litigator at Venable and a former D.C. public defender, has connections to Obama and other Democrats. The relationships were illustrated in a criminal case against former Rep. Jesse Jackson Jr. of Illinois when Wilkins recused.

Harvard law professor Charles Ogletree Jr., who taught Obama, had just joined the case. He told the Chicago Tribune that he and Wilkins, also a former student of his at Harvard, know each other well. Wilkins may have recused himself out of caution, Ogletree said. That wasn't Wilkins' only connection to the case, however.

Wilkins had warned the parties in a memo that, as a student at Harvard law in 1988, he served as a co-chair of the student group that was supporting the presidential campaign of Jesse Jackson, Sr., the defendant's father.

In the memo, Wilkins also said that in 1999 he "appeared as a guest on a show hosted by Rev. Jackson on the CNN network entitled 'Both Sides with Jesse Jackson' to discuss a civil rights lawsuit." The judge said he gave both defendants the chance to request a new judge "out of an abundance of caution."

At Venable, Wilkins represented clients in bribery cases, grand jury subpoena investigations and patent infringement suits. He is a founding member of the D.C. Access to Justice Commission. Legal Times in 2008 named Wilkins as one of Washington’s greatest 90 lawyers in the past three decades. He was also the lead plaintiff in a landmark racial-profiling suit that stemmed from a traffic stop in 1992 in Cumberland, Md.

Tony Mauro and Marcia Coyle contributed to this report.

Comments

[Avon]

How is it wrong that three nominees are proposed for three vacant seats? I think it's overdue.

The number of seats on the court is set by law. The president's entitlement to nominate judges who are liberal is set by the Constitution. (Yes, I would hope they're "liberal" enough in the classic sense to put judicial principle over party politics; but most judges are. Even the SCOTUS is unanimous 1/3 to 1/2 of the time.)

Obama's critics often claim he's derelict in some duty or other. What duty could be more clear than to fill vacancies that the law says exist, and that the Constitution says it's his duty to fill? I think the biggest reason so many vacancies accumulated is that Obama was trying too hard to pander to GOP prejudices as the 2012 elections approached. That must end.

The same people who fault the idea of staffing the D.C. Circuit would eagerly support a Republican president in doing it. If any of them wonder why they're encountering deaf ears, that's why: they've shot their own credibility in the foot.

[Rupert]

The possible appointees are all liberal and support Obama's agendas. Right now, the country is seeing the corruption come to light and is beginning to turn against much of the administration's agenda. The Republicans should oppose nominees who are more "political" than "judicial" appointees, as all of these are. Sri was a good appointment and there are plenty of good ones out there.

[Jeremy]

Three more nominees for the DC Circuit would be more meaningful if Obama got around to naming nominees for all of the existing judicial emergencies (which would also require the Senators from the states where the courts reside doing their job in recommending nominees). While filling the DC Circuit vacancies is important, it has sufficient judges to carry out its workload for the time being; filling the judicial emergencies, by definition, is much more important.

[Rick]

This really isn't even an issue, President Obama, like the presidents before him, won their election(s) and are afforded the privilege of nominating people to the DC Circuit, as well as every other Circuit & District Court...

You don't need to be Steve McGarrett of Hawaii 5-0 to figure Republicans out - their view of DC Circuit Court openings is 100% based on results of the election, IE: when the Democratic candiate wins, the caseload is small and no more judges are needed on the DC Circuit....If the Republican candiate wins, well, these openings need to be filled yesterday no ifs, ands, or buts about it..It is the GOP's presidents constitutional duty to fill any and all court openings...

[Mike]

I am glad to see that the administration is close to finally nominating individuals to this important court. All four individuals mentioned appear very qualified and I am sure would make exceptional judges, as would have Caitlin Halligan.
To the commenter who mentioned the court is under-worked, I can only reiterate a point made by numerous others that you must consider taking into account the complexity and time consuming nature of the types of cases heard by the D.C. Circuit. Additionally, a 12th seat was previously eliminated in 2009.
One final thought, is anyway considering Leondra Kruger, of the Solicitor General's Office, for this vacancy? She is younger, but seems to be a rising star.

[ColorBlindJustice]

The president can nominate all the folks he wants for what are questionable vacancies on an underworked court, even as the budgets of other courts around the country are stretched thin. But he got Sri confirmed, and that's all he's going to get on the D.C. Circuit.