By the time Robert Wilkins had his confirmation hearing Wednesday on Capitol Hill, even the senators had grown weary of the political fight over President Barack Obama's three simultaneous nominations to the U.S. Court of Appeals for the D.C. Circuit.
Senator Chuck Grassley (R-Iowa) came to Wilkins Senate Judiciary Committee hearing prepared to have what he called "the usual debate" about D.C. Circuit nominees. That entails Republicans and Democrats spending dozens of minutes trading court statistics about whether vacancies on that court even need to be filled.
Instead, Grassley and Senators Sheldon Whitehouse (D-R.I) and Patrick Leahy (D-Vt.) just submitted all those arguments for the record. Then they moved on to what turned out to be a relatively easy confirmation hearing for Wilkins, now a U.S. district judge on Washington's federal trial court.
Still, Grassley warned Wilkins about how his legal qualifications have little to do with the political fray Wilkins is entering. And Grassley alluded to the looming bigger fight when the nominations—Wilkins, Georgetown law professor Cornelia "Nina" Pillard, and Akin Gump Strauss Hauer & Feld partner Patricia Millett—get to the full Senate.
"Just so that you know this is a debate that is beyond you as an individual, although it could impact you, whoever wins that debate," Grassley told Wilkins. "We'll leave that for another day."
Wilkins was the third to get his hearing. Previously, Republicans have appeared poised to block Obama's D.C. Circuit nominations, setting up a showdown that could once again cause Democrats to threaten a historic change to the Senate's filibuster rules to allow for confirmation votes.
At his hearing Wednesday, Wilkins described his views on judicial empathy (he tries to give even consideration to all sides), the court's role in righting societal wrongs (courts must first follow the law) and what his law clerks would say about him ("They would say I'm tough but fair.")
The senators stayed away from questions about decisions Wilkins made on controversial issues, including serving on a three-judge panel that refused to allow Texas to implement its controversial voter-identification law, which has become a major issue since the U.S. Supreme Court in June gutted a key provision of the Voting Rights Act.
Grassley asked the trickiest questions, looking for Wilkins to react to several statements about reproductive rights that were not made by Wilkins. What Grassley didn't disclose is that the statements were made by Pillard, likely the most controversial of the White House's three picks for the D.C. Circuit.
Wilkins said he was not familiar with any of the statements, but that he would follow U.S. Supreme Court precedent in the area. "I really don't know what else to say about it," Wilkins said at one point.
Wilkins explained why he was intrigued and interested in the prospect of moving from the federal trial bench to the D.C. Circuit, often considered the second most important court in the country below the Supreme Court. "I'm not considering this because I'm unhappy in my current job, so I’ll tell you that much," Wilkins said.
"I enjoy being a trial court judge and have enjoyed it for the last two and a half years," Wilkins said. "I have had the privilege to serve on some three-judge panel cases, where I've worked with colleagues including colleagues on the court of appeals, so I've experience the collaborative decision making that entails and I've enjoyed that."
Wilkins is expected to win committee approval, but the toughest part of the political fight over the D.C. Circuit is yet to come: the Senate floor debate. If Democrats can convince enough Republicans to change the rules or overcome a Republican filibuster, then the nominations could move quickly. But if they can't, the nominations could be stalled indefinitely.
The judiciary committee approved Millett in a party-line vote, and the committee is poised to vote on Pillard's nomination next week. There has been no indication from Majority Leader Senator Harry Reid (D-Nev.) on when he might push for full Senate votes for the nominees.
Liberal organizations urged the Senate to move quickly on the nominations. "The D.C. Circuit has a complex, high-impact caseload that is in desperate need of a full bench of judges," American Constitution Society President Caroline Fredrickson said in a statement today. "The Senate must now give Judge Wilkins, along with Nina Pillard and Patricia Millett, fair and timely votes as they are nominated to one of the most powerful courts in the country."
The judiciary committee also held confirmation hearings Tuesday for four district court nominees, including two for the U.S. District Court for the Northern District of California.
Shearman & Sterling partner James Donato and Judge Beth Freeman of San Mateo County Superior Court sat on the same panel to answer questions. The committee also questioned Timothy Brooks, a nominee for the Western District of Arkansas, and Pedro Delgado Hernandez for the District of Puerto Rico.
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