A partisan effort to keep the nation’s second most powerful court in Republican hands will flare up against next Wednesday, when the third of President Obama’s three nominees to this court faces his confirmation hearing. Yet, while next week’s confirmation hearing is likely to focus on the GOP’s effort to prevent new judges from being confirmed to the United States Court of Appeals for the District of Columbia Circuit by citing misleading statistics, they are also likely to detour into a debate over voter suppression.
Judge Robert Wilkins is not simply a DC Circuit nominee, he is also one of three judges that prevented Texas from enforcing a voter suppression law last year, although that decision has since been superseded by the five Republican justices’ decision to render much of the Voting Rights Act toothless. Additionally, Wilkins was one of three judges that rejected a suit by the Republican National Committee that could allow billionaires to launder enormous sums of money to political candidates if the RNC eventually wins its lawsuit in the Supreme Court.
This second decision in particular should not be controversial. The RNC’s lawsuit wasn’t simply rejected by Wilkins, it was also brushed back by Judge Janice Rogers Brown, a deeply conservative judge who once compared liberalism to “slavery” and Social Security to a “socialist revolution.” Yet, while gutting restrictions on money in politics may not be good law, it is a top priority of the most powerful Republican in the Senate. Minority Leader Mitch McConnell (R-KY) may be the Senate’s leading advocate for tearing down campaign finance laws.
Wednesday’s hearing, however, will almost certainly bring some fireworks over the unanimous opinion Wilkins joined blocking Texas’ voter ID law. Although voter ID’s proponents justify these laws by claiming they are necessary to combat voter fraud at the polls, such fraud barely even exists — a Wisconsin study found that only 0.00023 percent of votes are the product of such fraud. What voter ID laws do accomplish is making it less likely that students, low-income voters and minorities will cast a ballot, all of whom tend to be more liberal than the median voter. Perhaps for this reason, protecting voter ID laws is a priority for many Republican lawmakers. Sen. Chuck Grassley (R-IA), the top Republican on the Judiciary Committee, recently suggested that he might kill an effort to reinstate the Voting Rights Act unless a special carve out is created to ensure that voter ID laws can still exist.
Yet, while Wilkins’ hearing will no doubt bring at least some criticism from Republicans for his stance in favor of voting rights, Republicans will probably try to block his confirmation for reasons that have nothing to do with his record. Currently, the DC Circuit is a bastion of conservatism, and its judges handed a series of high profile victories to corporate interest groups in recent years. Among other things, Republicans on the DC Circuit 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 in the workplace. It briefly threatened to shut down the only agency capable of enforcing much of American labor law, although that threat was averted after Senate Republicans caved and agreed to confirm several new nominees to that agency. And two DC Circuit judges have even claimed that all labor, business or Wall Street regulation is constitutional suspect.
If President Obama’s nominees to this powerful court are confirmed, it will drastically curtail the ability of the DC Circuit’s Republicans to reshape the law according to their policy preferences.
Yet, even setting aside the dire need to dilute the power of existing DC Circuit judges who’ve handed down so many legally doubtful decisions that just happen to align with Republican Party orthodoxy, there is another important reason why Judge Wilkins should be confirmed. Beyond his record on voting rights and democracy, Judge Wilkins is one of the few former public defenders on the federal bench, and he is also one of the minority of judges who knows what it’s like to be on the wrong end of racial profiling. In the 1990s, after Wilkins had already graduated from Harvard Law School, he successfully sued the state of Maryland after he and his family were pulled over and forced to stand on the side of the highway in the rain while their car was searched for drugs. It later came out that he was pulled over in the wake of a state police memo claiming that drug dealers tend to be African Americans driving rental cars.
So Wilkins will bring to the DC Circuit a much needed perspective on what it feels like to be the victim of unconstitutional discrimination — a perspective that will be quite unlike that of many of the court’s current judges. If Republicans do try to block him, Democrats can shut that effort down the same way they shut down the GOP’s last attempt to shape policy by filibustering nominees — by threatening to change the Senate’s rules via the so-called “nuclear option.”