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Senate Republicans Block Another Appellate-Court Nominee

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U.S. Senate Whip John Cornyn
U.S. Senate Whip John Cornyn, a Texas Republican, said Democrats want to “stack’ the D.C. Circuit court to “transform it into a rubber stamp for the president’s big-government, over-regulatory agenda.” Photographer: Win McNamee/Getty Images

Nov. 13 (Bloomberg) -- For the second time in two weeks, U.S. Senate Republicans blocked one of President Barack Obama’s nominees for a federal appeals court considered the nation’s second-highest because of its influence over government regulations.

The nominee, Georgetown University law professor Nina Pillard, fell short of the 60 votes needed to advance for consideration for a seat on the U.S. Court of Appeals for the District of Columbia. The 56-41 vote yesterday to limit debate effectively halted the nomination. On Oct. 31, Republicans blocked Washington appellate lawyer Patricia Millett’s nomination to the same court.

They are among three nominees that Obama has asked the Senate to confirm to fill vacancies on the D.C. Circuit court. Republicans say that its workload doesn’t justify filling the vacancies.

The refusal of Republicans to advance the nominees has rekindled calls among Democrats for changing the chamber’s rules to prevent the use of the delaying tactic known as a filibuster to thwart certain executive-branch and judicial nominations.

“There will have to be a rules change,” Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, said after the vote. “You cannot say that one president can have his way on qualified judges, another president cannot.”

Republicans said they welcomed the fight over any rule change that could eventually benefit their party if they win back the White House.

Rule Changes

“If the Democrats are bent on changing the rules, then I say go ahead,” Iowa Senator Charles Grassley, the top Republican on the Judiciary Committee, said on the floor. “There are a lot more Scalias and Thomases out there that we would love to put on the bench,” Grassley said of Supreme Court Justices Antonin Scalia and Clarence Thomas, who were chosen by Republican presidents.

Democrats also said Republicans were preventing women from becoming federal judges. In March, Senate Republicans blocked another D.C. Circuit court nominee, Caitlin Halligan, because of her work as New York’s solicitor general on a lawsuit to hold gun manufacturers liable for crimes committed with firearms.

“The women of America ought to be angry and saddened today,” Connecticut Democrat Richard Blumenthal told reporters after yesterday’s vote.

Republican Switches

Two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, voted with Democrats to advance Pillard’s nomination. Both also voted to let Millett’s nomination proceed.

Republicans have said that the court’s current complement of eight judges is sufficient to handle the workload and have accused Obama of seeking to “pack” the court with judges sympathetic to his regulatory policies.

Democrats want to “stack’ the D.C. Circuit court to “transform it into a rubber stamp for the president’s big-government, over-regulatory agenda,” Republican Whip John Cornyn of Texas said in a floor speech.

The D.C. Circuit court reviews challenges to executive-branch regulations, such as rules proposed by the Federal Communications Commission, the Environmental Protection Agency and the Federal Energy Regulatory Commission. The eight active judges are evenly divided between nominees of Democratic and Republican presidents. Obama's only nominee on the court is male -- Sri Srinivasan, who was confirmed in May.

Partisan Split

In a number of high-stakes business cases before the court, the judges have split along party lines. When a three-judge panel last year threw out an EPA rule to curb emissions from coal-fired power plants in upwind states, the majority opinion came from two judges nominated by a Republican. The dissenter was nominated by a Democrat.

Just a day after Millett’s nomination was blocked, two Republican-nominated judges on the court ruled that a provision in Obama’s 2010 health-care law that requires insurance plans to cover contraception violated the religious freedom of two Roman Catholic brothers who owned a private business. The dissent was written by a senior judge nominated by a Democrat.

To bolster their argument that there is no need for more judges on the court, Republicans have cited statements from 2006 by New York Senator Charles Schumer and other Democrats questioning the need to fill a vacancy with Assistant Attorney General Peter Keisler, who was nominated by President George W. Bush, a Republican.

Bush Nominees

Republicans also point to the Democrats’ successful efforts to block another Bush nominee, Miguel Estrada, a Washington lawyer who was seen as having the potential to become the Supreme Court’s first Hispanic justice.

On the Senate floor yesterday, Majority Leader Harry Reid disputed the Republican arguments about the caseload. The Nevada Democrat said that when Bush was president, “Senate Republicans happily filled the ninth, 10th and 11th seats on the D.C. Circuit -- the same three seats President Obama seeks to fill today -- even though the court had a smaller caseload at the time.” All told, the Senate confirmed four of Bush’s nominees to the court, including John Roberts, who later became the Supreme Court’s chief justice.

Even though Republicans haven’t budged in their opposition, Reid plans to set a vote on Obama’s third pending nomination to the appeals court, U.S. District Judge Robert L. Wilkins.

Filling Vacancies

“Democrats really believe that the president is entitled to fill vacancies,” said Carl Tobias, a law professor at the University of Richmond in Richmond, Virginia. “The question that is really hard to answer,” he said, is how to “get out of this mess without blowing up the Senate.”

The two parties’ views on filibusters over judicial nominations have often depended on the occupant of the White House. With Bush in the White House in 2005, Republicans, who held the majority in the Senate, were angered by Democratic efforts to block the president’s judicial nominees. They proposed requiring a simple majority vote to end a nomination filibuster, known among senators as the “nuclear option.” That showdown was defused when a bipartisan group of 14 senators agreed to block judicial nominees only “under extraordinary circumstances.”

The fight over judicial nominees is already providing fodder for next year’s political campaigns. Last week, a pro-Republican advocacy group, the Judicial Crisis Network, said it’s airing an advertisement to highlight the voting record on judicial nominations of a Democratic senator seeking re-election in Arkansas, one of the nation’s most-contested Senate races.

“Mark Pryor’s voted for every one of Obama’s liberal activist judges,” the ad said. “Now Pryor is helping Obama pack a key court with new liberal judges who will review the EPA, the IRS and agencies Obama is using to push his unconstitutional job-killing agenda.”

Erik Dorey, a spokesman for Pryor’s re-election campaign, said by e-mail that the ad was a “false attack” orchestrated by “special interest pals” of Representative Thomas Cotton, Pryor’s Republican challenger, who are “trying to smear” the senator.

To contact the reporter on this story: James Rowley in Washington at

To contact the editor responsible for this story: Katherine Rizzo at

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