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.
"The dems argued no need for extra judge a few years back but now all of a sudden it needs more?"
And who won that argument a few years ago? Did Bush say "okay, I guess I won't appoint anyone"? No, he didn't. Making that choice set a precedent. The hypocrisy cuts both ways, you know.
Posted by: Rico | July 14, 2013 at 05:37 PM
This debate is hilarious. The Senate is a political branch of the government, just as the executive is. The political maneuvering and debate that is happening now, and that has always happened, is fully within the Constitutional design. There is nothing wrong with it. It is healthy, and it is an exact reflection of our polity.
Yes, it is regrettable that we have so few statesmen and so many stupid politicians, but that is a reflection of our sick culture. Stupid voters elect stupid politicians (would Sarah Palin be noised about as a serious candidate for the Senate -- supposedly the leading deliberative body in the entire world -- in any culture that was not thoroughly stupid? would Michelle Bachman and Rick Perry be serious candidates for the chief executive anywhere but here?).
If you want statesmen selecting learned and wise jurists, instead of hacks picking hacks, fix the culture.
Posted by: John Q Public | July 11, 2013 at 05:34 PM
Despite all the political posturing on judicial nominations......it is my hope that all 3 of these well-qualified candidates for the DC Circuit get confirmed just as Sri was.
Posted by: Luis | July 11, 2013 at 01:11 PM
Peter,
Not only did Bork receive a fast, and fair hearing, he was opposed on the senate floor by 6 Republicans...That's how extreme he was..
Also, Thomas was only confirmed because several southern Democrats voted for him in 1991 - his final vote tally was 52-48....Shame on them
Posted by: Rick | July 11, 2013 at 10:04 AM
Oh shut up people.. If crooked corrupt Obama and his administration were honest, transparent like he said he'd be, and forthcoming then this would not be happening. The dems argued no need for extra judge a few years back but now all of a sudden it needs more? Ah yes aren't they the court going to hear obamas illegal appointees to this boards when congress was off for holiday? Workload has not changed.. So why then? You idiots with your noses up obeyme's backside really need to wake up and open your eyes! This administration has been busted lying, cheating and stealing so many tunes yet when repubs are trying to be sure things are legit from a corrupt administration they are obstructing? Get real! At least they are trying to do their jobs. its all checks and balances.. or its supposed to be when corrupt obama isnt breaking our laws and trying to bypass our constitution. As for going "nuclear".. Careful what you wish for.. 2014 is not that far off..
Posted by: Christine | July 11, 2013 at 05:52 AM
BR: Bork wasn't "Borked," however. He actually got an up or down vote on the Senate floor, despite not passing muster in the Senate Judiciary Committee on his Supreme Court nomination. You need to check your history. Furthermore, please note that he was actually a sitting judge on the DC circuit at the time of his SCOTUS nomination, despite his having had to run the gauntlet of a hostile Democratic minority in 1982 given the "Saturday Night Massacre" that he unconscionably participated in under President Nixon.
Posted by: Peter | July 11, 2013 at 01:38 AM
Rick. Remember Judge Bork. I think that is all that need be said about judicial obstructionism.
I frankly commend Cruz's honesty. He basically said: We can't be a party that ignores politics, because the Democrats won't let us. Ever since they "borked" Bork, and tried to do the same for Clarence Thomas, policy positions are something that we have to consider.
Unfortunately we seem to have a Mexican standoff, and I have no idea how to get out of it.
Posted by: BR | July 10, 2013 at 09:00 PM
"You're qualified, but sorry.....we just don't like the fact that President Obama is the one nominating you"!!!! "Now if a Republican President gave you the nomination......then of course you'd get my vote"!!! Gosh I hate politics & obbstructionism!!!! Now Dems have no choice but to use the nuclear option & let the chips fall where they may!!!!
Posted by: Henry | July 10, 2013 at 07:18 PM
It's embarrassing that any nominee have to sit through internal Senate committee spats, when the agenda is supposed to be her suitability. They should have excused her until they were done arguing about whether she should even be there. (If there was any point in arguing during hearings at all, as opposed to in conference.) She must have felt like a neighbor invited to dinner who first has to sit through a marital fight.
I'd like both the Senate and the House to start using hearings for the purpose of actually hearing. They're supposed to draw out facts from witnesses. What court hearing ever devotes its time to making speeches instead of eliciting and recording evidence? There's just no excuse for it.
Posted by: Avon | July 10, 2013 at 07:07 PM
Pure 100% obstructionism!!!
Posted by: Katherine | July 10, 2013 at 06:50 PM
That display by Republicans today at Millett's hearing should now convince everyone that they are no doubt the party of obstruction...It was sad and pathetic....Cruz spent his entire time whining about Miguel Estrada and Peter Keisler...
Cruz conveniently forgets that Bush had 4 confirmations to the DC Circuit, & 3/4 were highly controversial to...
Posted by: Rick | July 10, 2013 at 01:47 PM