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The Nomination of Three New Judges to the D.C. Circuit: To Support and Defend the Constitution

On June 4, 2013, Barack Obama nominated Patricia Millett, Robert Wilkins, and Cornelia Pillard to fill vacancies on the United States Court of Appeals for the District of Columbia Circuit. Some Republicans immediately objected. Describing his nominations as wholly political, they alleged that President Obama sought to pack the court, invoking rhetoric used against the FDR presidency to cast aspersions and plant a negative seed in the minds of those who do not know much about judging, or judges, or courts, or even American government. These Republicans argued that the nominees were, or would inevitably evolve into judicial activists, skewing the federal appeals court to the “left.”

Inherent to the Republicans’ assertion—and, indeed, the Democratic response—was a critical assumption: the decision-making of judges is substantially affected by their ideology at the time of appointment. Moreover, the objectors explicitly asserted and the proponents implicitly assumed that those different votes would affect the panels ideologically in such a way that the outcome of a significant number of cases would change in ways important to the political agendas of each party.
Indeed, so strong was the conviction among Democrats that by pushing through the nominations of Millett, Wilkins, and Pillard to the D.C. Circuit, they could significantly affect the law made by that Circuit (and thereby advance the Democratic agenda in general and the current President’s agenda in particular) that Majority Leader Harry Reid led his party in making the most substantial change to the Senate filibuster rules since their adoption. After Republicans refused to allow votes on any of the three nominees, the Democrats eliminated the filibuster on judicial appointment, and, in so doing, prevented the Republicans from blocking votes on Millett, Wilkins, and Pillard.

But one basic premise at the heart of this assumption was incorrect, at least to the extent that the behavior of the judges on the D.C. Circuit over the past five years is an indicator. I analyzed the 1009 merits opinions issued by that court between January 1, 2009 and December 6, 2013 and found that the judges on the D.C. Circuit have rarely chosen to dissent, and most opinions are unanimous. When judges have dissented, panel composition is not statistically related to that decision. To put it simply, a D.C. Circuit judge is no more or less likely to dissent from the majority opinion if he or she sits on an ideologically “pure” or “mixed” panel.
Certainly, it is true that the introduction of three new judges onto an existing court may change this dynamic. However, if they behave like their existing colleagues on the court have behaved over the last five years, the political affiliation of the President who appointed them is unlikely to be the deciding factor in whether they agree or disagree with their judicial colleagues. Some have also noted that, with the confirmation of three new “blue” judges, the potential for all-blue panels increases exponentially. In fact, it would have to do so, as over the past five years, only 9 of the 1009 cases in my survey were decided by all-blue panels, while 276 were decided by all-red panels.

However, if, as these findings seem to show, an increase in mixed red/blue panels would not necessarily increase the number of dissents, then there is no reason to believe that the increase in all-blue panels would cause the resulting decisions, on average, to be further “left.”

Naturally, in some small percentage of cases, ideology will win the day. But even in those cases, ones in which so-called experts claim they can predict the outcome with confidence, judges with a strong ideological bent may surprise them, just as the usually reliably conservative Chief Justice Roberts shocked the world with his vote in the health care cases in 2012 (basing his vote on a clause in the Constitution) and the almost always conservative Justice Scalia has surprised many with his votes in favor of criminal defendants over the years (again, basing his vote on the Constitution).

The Republicans’ attempted use of political capital to try to block Obama’s nominees may therefore have been misplaced.

That is because, on a level apart from all of these statistics, there is still one underlying force. Judges must support and defend the Constitution.

The new judges on the D.C. Circuit will have to swear to do so.

And that means they will have to make decisions that are not driven merely by ideology or strategy, but by law.

In their quest to stop the President from carrying out his Constitutional duty, Republicans forgot that they have pledged to do the very same job as the judicial nominees and the President they oppose.

The extremely high level of unanimity on the D.C. Circuit —and lack of ideological division—might be because federal appeals court judges are bound by precedent and must follow the Supreme Court’s rulings, at least in areas where the Supreme Court has ruled. The three new D.C. Circuit judges, because they are extremely experienced lawyers, professors, and jurists, understand the concept of precedent. They also understand that the prior cases that bind them present in different ways, with different twists, requiring thoughtful application of rule and reasoning.

As educated lawyers, they will also respect and seek to protect the institution—the venerable D.C. Circuit—of which they are a part. Making transparently ideological decisions is consistent with neither of these objectives. Working with their colleagues to reach agreement outside of ideological bounds is consistent with both. And, in the real world, that’s what the judges on the now evenly split D.C. Circuit do.

By challenging the nominees to the D.C. Circuit—indeed, by saying that they would not confirm any more Obama nominees to that Circuit at all—the Republican Senators delegitimized the role of the judicial branch. And the risks inherent to causing the public to doubt that their disputes can fairly be resolved—that is a risk far greater than the risk of so-called judicial activism.

It’s impossible to predict how an ideological judge will come out in any particular case, if ideology is your only measure. But it is eminently possible to predict how smart judges will come out, if their oath is any indicator.

They—just like the President who nominated them and the Senators who opposed them—will support and defend the Constitution of the United States.

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