How This Lawyer Who Dared To Call The Constitution ‘Progressive’ Just Became A Judge Without A Hitch

Pamela Harris CREDIT: Screenshot from American Constitution Society panel discussion
Pamela Harris CREDIT: Screenshot from American Constitution Society panel discussion

On Monday night, Pamela Harris quietly became a judge on the U.S. Court of Appeals for the Fourth Circuit. On the surface, the confirmation to fill a vacant seat on the federal appeals bench with a longtime respected Supreme Court advocate and scholar might seem ordinary. But in the scope of recent history, her easy confirmation is relatively extraordinary.

Harris is a Supreme Court litigator with a particularly diverse background for a federal judicial nominee: she has held high-level government positions in the Department of Justice, worked in private practice, and overseen Supreme Court programs at both Georgetown and Harvard Law Schools. She has also not shied away from championing public interest causes. Over the course of a career that started with a clerkship for U.S. Supreme Court Justice John Paul Stevens, she invested time in criminal defense for the indigent. She coordinated a program between her law firm and the Maryland Office of the Public Defender, and sought to correct a dramatic imbalance in Supreme Court cases between defendants and prosecutors as pro bono counsel for the National Association of Criminal Defense Lawyers. She has criticized court decisions that narrowed reproductive rights. And she has described the Constitution as a “profoundly progressive document,” serving in the boards of legal organization that embody that view, including the American Constitution Society for Law & Policy, and the Constitutional Accountability Center.

In the scheme of the legal profession, Harris is a relatively mainstream nominee, having worked as much in the corporate world as in the public interest, and having earned impassioned praise from prominent conservatives as someone with “exceptional legal ability and personal integrity.” But there was a time in the very recent past when Harris’ pro bono work and affiliations might have been fatal to her nomination. Just a few months ago, several outstanding nominees that garnered praise across the ideological spectrum were repeatedly blocked by Senate Republicans because they dared to express their opinions. At the time, judicial nominees could not overcome moves to block a simple up-or-down vote on their confirmation without 60 votes. If the confirmation vote on Harris is any indication, she would not have survived the procedural filibusters of that era. She was confirmed Monday night by a vote of 50 to 43.

But in November, even Democrats who had long believed in the filibuster as a central Senate procedure resorted to the nuclear option because of all-out obstruction abuse.

This time, while senators still retain and deploy many tools for obstruction, Republicans knew the filibuster wouldn’t be an option. And no kerfuffle ensued upon her nomination. During Harris’ confirmation hearing, Sen. Chuck Grassley (R-IA) questioned her past support for same-sex marriage and Justice Anthony Kennedy’s evolving views on the topic. Sen. Ted Cruz (R-TX) said he was “troubled” by her view that the Constitution is a progressive document. And the National Review described Harris as “prone to ‘abortion distortion’” and “well outside the mainstream of judicial philosophy.”

But this knee-jerk opposition notwithstanding, Harris’ nomination was approved by the Senate quietly Monday night, without the prolonged, harrowing scrutiny of her academic record that has doomed past nominees. Harris will be only the sixth woman to ever sit on the U.S. Court of Appeals for the Fourth Circuit, and her confirmation will bring the gender diversity of the federal appeals courts up to 35 percent. Her background working on criminal defense issues will also contribute significant professional diversity to the federal bench.

She joins three other recent nominees with extraordinary backgrounds who were confirmed only after Senate Democrats changed the rules.