(Last term, the nation’s top corporate advocacy group won 14 of the 17 Supreme Court cases where it filed briefs, including major decisions favoring bosses who engage in sexual harassment and permitting businesses to effectively immunize themselves from many lawsuits.)
So when the Senate Judiciary Committee convenes today to hold a hearing on Millett’s nomination to the United States Court of Appeals for the District of Columbia Circuit, the biggest mystery shouldn’t be whether she will be ultimately be confirmed or not — Democrats are unlikely to block an Obama nominee and Republicans have no substantive reason to oppose her — the biggest mystery will be how Senate Republicans will somehow manage to oppose her confirmation anyway. And, yet Senate Minority Leader Mitch McConnell (R-KY) recently suggested that he would block anyone Obama names to the DC Circuit.
Millett’s become a pawn in a game to preserve Republican control over the second most powerful court in the country. The DC Circuit recently handed down a decision that threatens to shut down virtually all laws protecting unions and workers’ rights to organize. It invalidated environmental rules that would have “prevent[ed] between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” It held that employers have a constitutional right to keep workers ignorant of their rights. And two of its judges recently claimed that all labor, business or Wall Street regulation is constitutionally suspect. The DC Circuit is where progressive regulation goes to die, and Republicans want to keep it that way.
Republicans, however, are on the verge of losing control over this powerful court. Three seats on the DC Circuit are currently vacant, and its Democratic appointees will gain a working majority if President Obama’s three nominees to these seats are confirmed. Moreover, while Millett’s record does not fill many progressive advocates’ hearts with delight — several prominent liberal advocates have expressed dismay over her nomination to me in private conversations — she is widely perceived as far more moderate than the DC Circuit’s current median judge. Millett is unlikely to emulate past liberal lions like J. Skelly Wright or David Bazelon, who drove many of the DC Circuit’s decisions in the 60s and 70s, but it would be genuinely shocking if she joined her colleagues’ most radical opinions. Confirming Millett will likely result in a much more restrained DC Circuit, and that would be a vast improvement for anyone who believes that the government should actually be capable of governing.
To prevent this from happening, Sen. Chuck Grassley (R-IA) proposed eliminating the three vacant seats on the DC Circuit. While Grassley claims such a move is justified because the DC Circuit is underworked, it is unlikely that this explanation is anything more than a fig leaf. Yes, it is true that the DC Circuit hears fewer cases than many other circuits, simply in terms of raw numbers, but these raw numbers are completely misleading. In reality, the DC Circuit hears an unusually large number of major regulatory cases and national security matters, some of which are so complex that their records literally take up an entire room. Most other circuits hear few, if any, cases of this degree of complexity, while they make up a major share of the DC Circuit’s docket. So the DC Circuit’s judges have plenty to do, they just occupy their time with a relatively small number of really big cases rather than with lots of small ones.
Additionally, and perhaps most tellingly, when George W. Bush was president, Grassley voted to confirm Judge Janice Rogers Brown to the tenth seat on the DC Circuit and he voted to confirm Thomas Griffith to the eleventh seat on the DC Circuit. Now that a Democrat is nominating judges, however, he suddenly believes that the court is so packed that there’s no need to confirm Millett to its ninth seat.
So Republicans are engaged in a ploy to prevent President Obama from filling three seats on this court at the exact moment when confirming those nominees would deprive Republicans of a major power center. Meanwhile, Obama has resorted to nominating an (admittedly exceptionally brilliant) advocate for big business in an attempt to fill one of these crucial seats. This stands in stark contrast to the Bush Administration, when President Bush successfully placed some of the most ideological judges in recent American history on the DC Circuit’s bench. One of those judges compared Social Security to cannibalism and labeled the New Deal “our own socialist revolution.”
There is a way to break free of this dichotomy, however. Today, the Judiciary Committee will conduct a hearing on Millett’s nomination. Tomorrow, Senate Democrats will convene to decide whether to reform the filibuster to strip away Republicans’ ability to dominate the confirmation process. Unless they agree to do so, Democrats can expect more and more compromise nominees like Millett will come out of the White House — and they can’t even be sure those nominees will be confirmed.