Law professor says Obama making a statement with three D.C. Circuit nominations

By Jessica M. Karmasek | Jun 5, 2013

WASHINGTON (Legal Newsline) -- A University of Richmond law professor says President Barack Obama's decision to make three, simultaneous nominations to one of the nation's most important courts, albeit bold and somewhat unusual, is a statement to Republicans.

Obama said in a high-profile press conference, held in the White House's Rose Garden Tuesday morning, he will nominate Cornelia "Nina" Pillard, Patricia Ann Millett and Robert Leon Wilkins to the U.S. Court of Appeals for the District of Columbia Circuit.

Carl Tobias, the Williams Professor of Law at University of Richmond's law school and a keen observer of the judicial nomination process, said in an interview Wednesday that he believes the President is signaling to the GOP that he wants judicial vacancies to be filled -- and more quickly.

"If you watch his press conference, you get that flavor from what he's saying," Tobias said. "He's pushing these nominees for this court, but, generally, he wants the process to move more quickly."

Tobias admitted that Obama's move is a bold one, but said the President probably had his reasons.

"He may have tired of the GOP Senate delay of his nominees," he said. "And I think he was unhappy over (Caitlin) Halligan's treatment."

Halligan took her name out of consideration in March after Republicans blocked her nomination again and again for more than two years.

And though unusual, this week's D.C. Circuit nominations wouldn't be the first time more than one person has been nominated to a single court.

"It's a little unusual," Tobias admitted, but noted that something similar happened early on in former President George W. Bush's administration.

"It's also unusual to have that many vacancies on a court that is that important."

The court is considered by some to be the second most important court in the country, after the Supreme Court.

It often is responsible for resolving critically important cases involving the separation of powers, the role of government, the rights of federal officials, and the decisions of a vast array of administrative agencies.

In fact, it was the D.C. Circuit that ruled Obama's "intrasession appointment" of three new members to the National Labor Relations Board was an unconstitutional abuse of power because he could not make those appointments without Senate confirmation because the Senate was not in recess.

Now, as to how quickly the three nominees will move through the Senate Judiciary Committee, Tobias said it's difficult to predict.

"Usually, it's easier to get somebody through if you have a group that's larger," he explained. "I think there's some of that going on here."

And though Sri Srinivasan was approved by the U.S. Senate to the D.C. Circuit both quickly and unanimously, Tobias said it's hard to say, at this point, if Pillard, Millett and Wilkins will get the same reception.

"The GOP isn't saying that they're opposed to any of them, yet," he said. "(U.S. Sen. Chuck) Grassley was on the radio saying he didn't even know their names. So we'll see what happens when there's been some look at their qualifications and backgrounds.

"Sri was uncontroversial but many observers thought Halligan was, too. So, it's unclear."

However, all three received the American Bar Association's highest rating, Tobias noted.

"All three are highly qualified," he said. "Two are among the very best U.S. female appellate litigators, and the third (Wilkins) was confirmed easily two years ago."

Pillard currently serves as a professor at the Georgetown University Law Center.

Prior to that, she worked in the U.S. Justice Department as a deputy assistant attorney general, the Solicitor General's Office, the NAACP Legal Defense and Educational Fund Inc., and the American Civil Liberties Union.

Millett heads Akin Gump Strauss Hauer & Feld LLP's Supreme Court practice, and co-heads the firm's national appellate practice.

She has argued a total of 32 cases before the Supreme Court and about 36 in federal appeals courts.

Wilkins has served as a judge on the U.S. District Court for the District of Columbia since 2010. Obama nominated him to the post.

Previously, he worked at the Public Defender Service for the District of Columbia from 1990 to 2002, serving as chief of special litigation from 1996 to 2000.

Wilkins also was a partner at the Washington law firm of Venable LLP from 2002 to 2010.

"I think so far the GOP is raising mostly structural issues about the court not needing any more judges," Tobias said. "At some point, they'll focus on (the nominees') backgrounds."

In April -- during Srinivasan's confirmation hearing -- Grassley, ranking member of the Senate Judiciary Committee, announced his plans to introduce the Court Efficiency Act.

The legislation would reduce the number of judgeships on the D.C. Circuit from 11 to eight, and add a seat to the Second and Eleventh circuits.

Grassley contends the legislation is an "efficient allocation of resources" and would save taxpayer dollars.

But Tobias said the measure, pointing to the Democrat-controlled Senate, is going nowhere.

It also does not fall in line with judgeship recommendations by the U.S. Judicial Conference, he added.

"They just met this spring and they made no recommendation for a change in the D.C. Circuit," Tobias said. "And I think that's the best source for that type of information."

Tobias said Grassley's legislation doesn't take into account the kind of cases the D.C. Circuit is charged with handling.

"They can be extremely time-consuming," he said.

Also, he noted, judges from the 11th Circuit have gone on record saying they oppose the addition of more judges to the court.

"So, you have that disconnect going on," Tobias said of the GOP's proposal.

And as to whether Obama's nominations this week can be viewed as court packing, Tobias said, decidedly, no.

Grassley issued a statement Monday ahead of Obama's nominations, saying as much.

"It's hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda," the Iowa Republican said.

What President Franklin Roosevelt proposed in 1937 -- a law allowing him to appoint up to six new justices to the U.S. Supreme Court -- is court packing, Tobias said.

"Obama is just filling vacancies versus creating new seats," he explained.

Tobias said he expects the judiciary committee to take up each D.C. Circuit nominee one at a time, perhaps starting later this month.

"They might have hearings before the August recess," he said. "But the real question is what will happen from there."

From Legal Newsline: Reach Jessica Karmasek by email at

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