Mr. President, I rise today to speak in favor of Ms. Patricia Millett’s nomination to the D.C. Circuit Court. As a member of the Senate Judiciary Committee, I have had the opportunity to closely examine each of the judicial candidates nominated by our president. I did so with Ms. Millett by attending her nomination hearing and speaking to a wide range of the practitioners and colleagues who have direct knowledge of her professionalism and experience. Without exception, at every stage of her career and with every personal and professional colleague with whom she’s had work experience, Patty Millett has distinguished herself as a person of integrity, intelligence and dedication.
She is a person whose capability and devotion to her family is an inspiration to those around her. She is unanimously recommended by former living Solicitors General and received the A.B.A.’s highest rating. Some of my colleagues here have argued that President Obama is trying to, “pack the court” by nominating Ms. Millett and two other nominees to fill three current vacancies on the D.C. Circuit Court. These charges of court packing strike me, frankly, as without foundation.
Court packing is an historical term used to describe when politicians try to change the size of a court or expand a court in order to control its expected outcomes. That was the cause of the objection to President Roosevelt’s plan to add up to six justices to the U.S. Supreme Court back in 1937. This is, in fact, the opposite. In fact, a current legislative proposal to strip the President’s ability to fill three vacant seats on the D.C. Circuit could be better called court stripping.
In this particular case, making nominations to vacant judicial positions is not court packing, it is a president doing his job, and confirming highly qualified nominees to serve on this circuit in this vacancy would be this body doing its job. Charges of court packing are absurd on their face. They’re even more absurd when put in context. Ms. Millett has been put in the ninth seat of the eleven seats authorized on this court.
I held a hearing earlier this year on judicial staffing levels in my role as the chair of the Subcommittee on Bankruptcy in the Courts of the Judiciary Committee. I invited the chair of the Committee on Judicial Resources, Judge Tymkovich, to come and testify. He was nominated by George W. Bush to serve on the Tenth Circuit Court of Appeals. Judge Tymkovich testified rather convincingly that the federal judiciary needs more judges, not fewer. Every other year, the judicial conference submits to Congress a report on recommendations on judgeships. That report did not conclude that any judgeship should be removed or remain unfilled on the D.C. circuit. Judge Tymkovich also explained why the caseload statistics used by some of our colleagues to argue that the D.C. Circuit has a low caseload and, thus, need not have its vacancies filled, are in fact unconvincing.
The D.C. Circuit, in fact, hears a unique case load with four times the number of complex administrative appeals than other circuit courts around the country. The D.C. Circuit is the circuit from which all the federal agencies’ actions are repealed. Its caseload is made up of very complex, very difficult cases with far-reaching consequences, and that requires a great deal of time. So simply looking at the raw number of cases filed, opened, and closed is not an accurate predictor of whether or not a vacant seat on the D.C. Circuit should, in fact, be filled.
The D.C. Circuit’s caseload has, in fact, remained steady over the past ten years so the Judicial Conference has seen no reason to recommend any alteration in its staffing levels. The court packing argument made by some is also at odds with history, especially when you consider that caseloads lower than they are now on the D.C. Circuit were sufficient when all Republicans then in office voted to confirm then-judge Roberts to the Ninth Circuit, Janice Rogers Brown to the 10th seat, Thomas Griffith to the 11th seat, and Brett Kavanaugh to the 10th seat when it became vacant.
When Ms. Millett is confirmed, the D.C. Circuit will still have more pending appeals per active judge than after the confirmations of any of those four earlier Bush nominees. The caseload on the D.C. Circuit would also remain above that of the current Tenth and Sixth Circuit to which the Senate has confirmed Republican-supported judicial nominees this year.
A filibuster of Ms. Millett on caseload grounds would bring the Senate to an unprecedented and regrettable place. It would destroy comity and trust at a time when our nation needs it most, when we need to demonstrate to the people of the United States that this Congress can function and that this Senate can fulfill its constitutional role.
It would not just facilitate the administration of justice by our courts, but also allow us to tackle other issues if we could move past endless and needless filibusters on issues like this. It would allow us to move forward to the broader issues of the day, tackling long-term debt and deficit challenges, fighting global terrorism, reinvesting in our future, and working together to grow our economy, and there are so many other issues that call for the time of this body.
With that, Mr. President, I want to urge my colleagues to look at Ms. Millett’s nomination on its merits and not be distracted by what I think are groundless arguments that this is an instance of so-called court packing by this President. This President is doing his job. He is nominating supremely qualified candidates to serve in the highest courts of this land and this body should do its job and confirm those qualified nominees. Thank you.