Today, the Senate is scheduled to decide whether Patricia Millett, the first of three outstanding nominees to the U.S. Court of Appeals to the District of Columbia Circuit, should get a confirmation vote. Ms. Millett’s qualifications are exceptional – she is a nationally renowned appellate litigator with 32 Supreme Court arguments and more accolades and endorsements that I can list here –as even some Senators who are arguing against allowing an up-or-down vote readily admit. As Senator Ted Cruz stated at her Senate Judiciary Committee hearing, however, the question of whether or not this extraordinary candidate can get a confirmation vote is a “broader battle.”
But only a couple of weeks after the government shutdown, this battle seems Pyrrhic at best. There are eleven seats on the D.C. Circuit; three currently sit empty. Those who assert that these three seats don’t need to be filled ignore that the D.C. Circuit’s caseload is actually higher than other circuits [PDF], like the Tenth Circuit, to which nominees were recently confirmed. What is more, many of the same Senators who are currently urging a filibuster on Patricia Millett’s nomination had no problem confirming three nominees to this court, when the caseload was significantly lower, during the Bush Administration. And the experts whose job it is to determine whether courts need more, or fewer, judges have not recommended any changes to the D.C. Circuit’s current complement of eleven seats . On top of that, as former Chief Judge Patricia Wald explained, because the D.C. Circuit’s caseload contains significantly more complex administrative cases than other circuits, the raw caseload numbers don’t tell the whole story about this court’s workload.
The short answer is that all three nominees to the D.C. Circuit are needed, and deserve up-or-down votes. The Senate can start by voting for cloture on Patricia Millett’s nomination, today. Because allowing all branches of the government to do the people’s business is the Senate’s job.