Significant Events and Issues
Vacancies at Start of 113th Congress
On January 3, 2013, the day that the 112th Congress adjourned sine die and the 113th Congress convened, there were 77 vacancies on Article III courts. President Obama immediately renominated the 33 nominees pending at adjournment, including two who had been successfully filibustered and 11 who were waiting for a final floor vote.
1st Session Begins with Procedural Reforms and Modest Progress
On January 24, 2013, Senate leaders agreed to a modest packet of reforms to Senate procedures and rules, including limiting the time for post-cloture debate on district court nominations to two hours for the duration of the 113th Congress. Senator Reid said he hoped this modest change would discourage senators from filibustering district court nominees, a record number of whom were filibustered during the 112th Congress. The two leaders also agreed that senators who wish to object or threaten a filibuster must actually come to the floor to do so, and that debate time post-cloture must be used for debate and not as a tactic to slow down business.
This marked the second time during the Obama presidency that the Majority and Minority Leaders agreed to modest procedural changes: at the start of the 112th Congress, they agreed to restrict the use of secret holds, long considered a senatorial privilege, by requiring any senator who places a holds to disclose his or her identity within two days.
The first judicial nominees of the 113th Congress were confirmed in mid-February. William Kayatta, who had waited 10 months for a floor vote, was confirmed to a seat on the First Circuit, by a vote of 88-12; Robert Bacharach, whose nomination had been filibustered last Congress, was confirmed by a 93-0 vote to the Tenth Circuit; and Richard Tarranto, who had waited for a floor vote for a year, was confirmed to the Federal Circuit by a vote of 91-0.
At the start of the 113th Congress, President Obama renominated Caitlin Halligan and Sri Srinvasan to two of the four vacant seats on the D.C Circuit. During the 112th Congress, Halligan’s nomination had been successfully filibustered and Srinvasan’s nomination received no action for six months to accommodate Senate Judiciary Committee Republicans who wanted more information about his activities at the Department of Justice.
The comity enjoyed during the first few months of the 113th Congress was not sufficient to overcome Republican opposition to Caitlin Halligan. For the second time in two years, her nomination was successfully fillibustered, this time on a cloture vote of 51- 41. Halligan withdrew her nomination on March 25, 2013 a few weeks after the vote. Sri Srinivasan fared much better. Even though Senator Reid had to force a floor vote by filing a cloture petition, Sri Srinivasan was confirmed to the DC Circuit by a vote of 97-0 on May 23, 2013.
To discourage any further nominations to the DC Circuit by President Obama, Senator Grassley (R-IA) introduced S. 699, the Court Efficiency Act of 2013, which would reduce from 11 to 8 the number of authorized judgeships on the court and create two new judgeships in other circuits. It would take effect immediately upon enactment. Upon introduction, Senator Grassley stated, “It is no secret that the D.C. Circuit is the least-busy, least-worked appellate court in the nation.” His assessment of the needs of the court was based on his interpretation of statistics maintained by the Judicial Conference.
Opponents of Grassley’s bill point out that the statistics he relies on do not take into account the complexity of the cases before the DC Circuit. As retired DC Circuit Court Judge Pat Wald stated in an op-ed in the Washington Post, the DC Circuit has exclusive jurisdiction over many vital national security challenges and hears the bulk of appeals from the major regulatory agencies of the federal government, including clear air and water regulations, nuclear plant safety, health care reform, insider trading and more. It resolves more constitutional questions involving separation of powers and executive prerogatives than any other court of appeals, and is often the “breeding ground” for Supreme Court nominees and referred to as the second most important court in the nation.
Neither the Judicial Conference nor the DC Circuit has recommended this reduction in judgeships for the DC Circuit. In 2009, the Judicial Conference, which utilizes a multi-step process for developing comprehensive recommendations for terminating and authorizing judgeships, recommended elimination of the DC Circuit’s 12th judgeship. Congress readily concurred and passed legislation that offset the reduction on the DC Circuit by adding one authorized judgeship to the Ninth Circuit Court of Appeals.
On June 4, President Obama exercised his constitutional duty to make nominations to the federal bench by submitting to the Senate the names of three nominees to the DC Circuit - Patricia Ann Millett, Cornelia T. L. Pillard, and Robert L. Wilkins. Republicans immediately and vociferously denounced the action, accusing the President of “court-packing” and suggesting that the President’s motive to fill the open seats was strictly political.
The Senate Judiciary Committee reported all three nominees to the Senate on party-line votes of 10-8. However, during the fall, floor consideration of the nomination of Patricia Ann Millett was blocked by a cloture vote of 55-38-3; the nomination of T. L. Pillard by a cloture vote of 56-41; and the nomination of Robert Wilkins by a cloture vote of 55-43.
Majority Leader Invokes the “Nuclear Option” to Change the Filibuster Rule
On November 21, 2013, Majority Leader Reid invoked the “nuclear option” and, changed the Senate rules regarding filibusters by a series of procedural moves that changed a standing Senate Rule by simple majority vote rather than the normally required supermajority of 67 votes. Members of both parties have threatened to invoke the nuclear option for almost a decade but had always worked out some accord to avert it at the last minute. For example, in 2005, then-Majority Leader Bill Frist, threatened to invoke it after Democrats filibustered ten of President Bush’s appellate court nominees, including Miguel Estrada. The “Gang of 14”—seven senators from each party reached an accord over the nominees and an understanding was reached to limit filibusters to extraordinary circumstances. In the intervening years, both parties have violated the agreement in one way or another and contributed to increasing discord over the nomination and confirmation process that culminated in Senator Reid pulling the trigger. Reid claimed it was necessary because of widespread Republican abuse of the filibuster, an assertion he defends by citing a June 2013 Congressional Research Service report that concluded that 82 of the 168 filibusters of nominations in the history of the United States have been waged by Republicans under President Obama. In addition, the report stated that 20 of the 23 filibusters of district court nominees to occur in the history of our country were launched against Obama’s district court nominees.
The Rule change guts the power of the filibuster by lowering the threshold for cloture on all executive branch and judicial nominees except for Supreme Court nominees from 60 votes to a simple majority. The change applies to all future Congresses and presidents barring a future rules change by the Senate. Shortly after the rules change, the Senate reconsidered the nominations of Millet, Pillard, and Wilkins, the three DC Circuit nominees who had been filibustered last session. In a symbolic gesture, all three were filibustered again, but the new Rule guaranteed successful cloture votes, and all three went on to be confirmed -- Millet by a vote of 56-38; Pillard by a vote of 51-44; and Wilkins by a vote of 55-43.
The Senate Rule change in no way assures the prompt filling of judicial vacancies; there still are a number of ways to prevent a particular nominee for getting a floor vote or delaying the nomination and confirmation process, including not forwarding names of candidates for nomination to district court vacancies, refusing or delaying the return of blue slips (e.g., consider the delay by the two Republican senators in returning blue slips for 5 Arizona nominees, or the blocking of blue slips for 6th Circuit nominees by two Democratic senators in 2002), blocking executive committee action by preventing a quorum from being present; placing a series of holds on a nominee, and of course, using up precious Senate time by forcing a cloture vote that in turns allows for 30 hours of debate on all but district court nominees. Because of the availability of all these additional tactics, it will take time before we know how the change will affect the overall vacancy rate on Article III courts.
Following invocation of the Nuclear Option, Republicans closed down the confirmation process for the rest of the session by refusing to attend executive business meetings or vote on consensus nominees previously scheduled for a floor vote. In an act of further protest, Republicans returned 55 of the 56 pending nominees at the close of the 1st Session. The Wilkens nomination was not returned because a cloture petition was pending on his nomination at the time of adjournment.