The struggle over Republican filibuster threats blocking confirmation of President Barack Obama’s nominees may only have paused, not ended.
A question still to be answered is whether Republican senators will decide that delaying of confirmation votes on judicial nominees is too dangerous a strategy because it would result in Senate Majority Leader Harry Reid abolishing filibusters by imposing the “nuclear option,” a unilateral rules change.
Even though long-stalled Thomas Perez has now been confirmed by the Senate and is serving as labor secretary, and likewise Environmental Protection Agency chief Gina McCarthy, seven Obama appeals court nominees have yet to win Senate confirmation. Those judges will be shaping policy long after Perez and McCarthy have left their jobs and Obama has made way for his successor at the White House.
No federal appeals court wields more power than the U.S. Court of Appeals for the District of Columbia Circuit. Obama explained last month when he introduced his three choices to serve on that court that “the judges on the D.C. Circuit routinely have the final say on a broad range of cases involving everything from national security to environmental policy; from questions of campaign finance to workers' rights. In other words, the court's decisions impact almost every aspect of our lives.”
During George W. Bush’s presidency, Democratic senators, including Reid, successfully used the filibuster to delay and prevent confirmation votes on several Bush judicial nominees, including Miguel Estrada to serve on the D.C. Circuit.
In May, the Senate unanimously confirmed one Obama nominee to the D.C. Circuit, Sri Srinivasan, after blocking a confirmation vote on another, Caitlin Halligan.
Facing the Senate Judiciary Committee Wednesday was one of the D.C. Circuit nominees, Cornelia “Nina” Pillard, a Georgetown Law Center professor who served in the Justice Department from 1994 to 2000 as an attorney in the Office of Legal Counsel and as assistant to the solicitor general.
Republican Sens. Ted Cruz of Texas, Mike Lee of Utah, Jeff Flake of Arizona, and ranking panel member Charles Grassley of Iowa all grilled Pillard on views she has expressed in law review articles and in forums over the past several years.
Pillard repeatedly distanced herself from her past statements and insisted that, if confirmed, she would be scrupulously impartial and faithful to Supreme Court and D.C. Circuit precedents. “I would have to check my feelings at the door” she told Flake. “Any personal views I might have would be irrelevant to my serving as a judge,” she told Grassley.
Grassley and Cruz questioned her on the 2012 Hosanna Tabor decision, in which the Supreme Court unanimously ruled that the Establishment and Free Exercise Clauses of the First Amendment prevent job discrimination lawsuits brought by ministers against their churches.
While that case was pending before the high court, Pillard said at a panel discussion that the church’s position in that case was “a substantial threat to the American rule of law.” At Wednesday’s hearing she smiled as she said to Grassley, “I have to admit…. I really called it wrong,” and added, “Needless to say I would be bound by the court’s decision in that case and in every other case….”
Lee confronted Pillard with a quotation from an article she’d written in 2007 in which she said, “Our law, institutional arrangements, and culture need to be restyled so that mothers are not routinely ‘mommy tracked’….” She said that article was “not at all a direction to judges, but a direction to people who would be advocating for policies,” such as legislators.
Lee also quizzed Pillard about a brief she wrote in a case in the 1993 Supreme Court case, Bray v. Alexandria Women's Health Clinic. The court held that an 1871 federal law intended to stop Ku Klux Klan (KKK) members from killing and intimidating black people from voting couldn’t be used to punish anti-abortion protestors.
Pillard had argued in her brief that anti-abortion protesters were breaking that 1871 law by blocking abortion clinics and, like KKK members, were “seeking forcibly to revoke constitutional rights that they had been unable to repeal through legal and political processes.”
Lee asked, “Do you believe pro-life protesters… are fairly analogous to Ku Klux Klan members who lynched African-Americans simply because of their race…. Is this a fair comparison?”
“Not at all, not at all,” replied Pillard, adding that the 1871 law was “not a good fit” and not the best way to deter protesters who hindered police who had been keeping access open to abortion clinics. Congress fixed the problem, she said, the following year by passing the Freedom of Access to Clinic Entrances Act.
Grassley, Lee and Cruz all argued that the D.C. Circuit did not need any more judges because its current caseload is not heavy enough. Lee accused Obama of trying to “pack the court" and “stack the deck to his advantage.”
But presiding at the hearing, Sen. Richard Blumenthal, D-Conn., contended that the complexity of the regulatory cases which the D.C. Circuit decides is an equally, if not more important, factor in why the court needs the three Obama nominees.
Looming over all this is another potential filibuster clash.
Conservative judicial observer Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said, “I actually hope Reid does deploy the nuclear option, and that Republicans will get out of his way if he does. Then we would at least have both parties on equal footing going forward.”
She added, “In the abstract, I would prefer a world where judicial nominees receive up-or-down votes. But until the Democrats agree to abide by those rules, Republicans are more than justified in playing by the rules the Democrats established when they engaged in unprecedented obstruction of (George W. Bush judicial) nominees like Miguel Estrada and Peter Keisler, to name just a couple.”