Congratulating the Boston Red Sox (Executive Session)
I ask unanimous consent that the order for the quorum call be rescinded. Mr. President, I rise to say a few words about the appointment of Patricia Millett to the DC Circuit. The DC Circuit is an 11-member appellate court that hears some…
I ask unanimous consent that the order for the quorum call be rescinded.
Mr. President, I rise to say a few words about the appointment of Patricia Millett to the DC Circuit. The DC Circuit is an 11-member appellate court that hears some of the greatest and most serious administrative appeals in this country. Most of them are complicated, somewhat convoluted, and they do take serious expertise.
The court is an 11-member court. It currently has eight members. Three of the eight are women, and there are three vacancies on the court. Patricia Millett has been nominated by the President to fill one of those vacancies. What is interesting about this debate is that no one questions her qualifications or her temperament. She graduated summa cum laude from the University of Illinois in 1985 and magna cum laude from Harvard Law School in 1988. Even Senator Cruz from Texas has pointed out how superbly qualified she is. Yet there is a good chance that there will not be the votes to allow us to proceed to a vote on her qualifications and therefore confirm the nomination.
I wish to state some of her qualifications. She clerked for Judge Thomas Tang on the Ninth Circuit in Phoenix, AZ, for 2 years. She worked in the Solicitor General's office for 11 years, in the Justice Department's civil Appellate Section for 4 years. She leads the Supreme Court and appellate practice at the law firm Akin Gump. She has argued 32 cases in the Supreme Court, placing her in the top 10 of all attorneys from 2000 to 2012. She has also argued dozens of cases in other appellate courts.
She is known as a superb appellate lawyer. She is known as someone with sterling qualifications, and she has received the unanimous rating of ``well qualified'' from the ABA--the highest rating the ABA gives. She has received numerous awards from the Department of Justice and strong support across the aisle, including from all three Solicitors General who served in the Bush administration. She is not only an outstanding lawyer, she is also an exceptional person with a work ethic, a morality, and a history of faithful service that is truly admirable.
She is the mother of two children, David and Elizabeth. She earned a black belt in Tae Kwon Do after taking classes with her husband and their children. I am not sure how important that is, but I assume she is physically very fit.
She is a military spouse. Her husband Bob served in the Navy and the Navy Reserve until his retirement in 2012, and he was deployed to Kuwait in 2004.
Anyone who has read the Bars and Stripes article on her cannot but look at this woman and say she is the model American woman. Yet we may not even be able to vote on her today.
During that time, Patricia was also one of so many military spouses who shouldered the burden of parenting while her husband was overseas. She understands the sacrifices military families make to keep our country safe. ``Pattie did the job of two parents while Bob was away. . . . During Bob's nine-month deployment [to Kuwait], Pattie was still working at the Solicitor General's office and handling a heavy Supreme Court caseload,'' which is very special if one thinks about what it means. ``She argued one Supreme Court case and briefed five more while juggling her solo-parenting duties.'' According to this article, Tom Goldstein, a distinguished appellate practitioner and the founder of the popular scotus Web site, said ``Through it all, he never saw Pattie complain about these sacrifices for her country.''
She has also made a long-time commitment to work on behalf of the homeless. The Bars and Stripes article says:
The project most near and dear to Pattie's heart is
Mondloch House, a group of homeless shelters and individuals
that Pattie has been involved with for many years. Each week,
Pattie coordinates fruit and vegetable deliveries . . . to
make sure the shelters have fresh produce.
Judge Thomas Ambro of the Third Circuit Court of Appeals said it best:
Pattie is a really good human being. And, as everyone
knows, she's in the first rank of appellate practitioners in
this country. She combines talent, hard work, judgment, and
focus; she's the complete package.
The question is, Why is there opposition to this nomination? Some on the Republican side have said the DC Circuit, which today has eight judges and three vacancies, doesn't need any new judges. They said President Obama is trying to pack the court. I disagree. Only 7 or 8 years ago my Republican colleagues were arguing to confirm President Bush's nominees to fill vacancies on the 9th seat, the 10th seat, and the 11th seat on the DC Circuit. They even threatened to invoke the nuclear option to fill these seats. The caseload isn't much different than it was then. In fact, it is greater in some measures today. The number of pending appeals per active judge on the DC Circuit is greater than the number when all four of President Bush's DC Circuit nominees were confirmed. In addition, while the raw filings per active judge are lower on the DC Circuit than some other circuits, there is good reason for that. The DC Circuit's caseload is different because of the substantial docket of complex administrative agency appeals.
In fact, statistics published by the Judicial Conference of the United States show that--without counting immigration appeals--43 percent of DC Circuit cases were administrative appeals. The average in all other circuits combined is only 1.7 percent. That is a huge difference.
If you look at the published opinions from the first six months of this year, the DC Circuit's published cases took just as long--and in many cases longer--than did the published decisions of many other circuits. The median time from filing to disposition is 11.8 months--28 percent above average among the circuits.
And, many of those DC Circuit cases involved highly complex administrative appeals with important questions of Federal law and regulation.
Chief Justice Roberts wrote about this in a 2006 law review article called What Makes the DC Circuit Different? He cited the Court's jurisdiction to review decisions of numerous important agencies, such as the FCC, the EPA, the NLRB, the FTC, and the FAA. And he wrote: ``Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency's decision is vested in the Circuit.''
And, as former DC Circuit Judge Patricia Wald wrote in the Washington Post, ``These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record--all of which culminates in lengthy, technically intricate legal opinions.''
So, the caseload does support the confirmation of new judges to the DC Circuit.
I would also like to take a moment to address this notion of ``court packing,'' a term that originated with a plan by President Franklin Roosevelt to authorize new seats on the Supreme Court when he was not getting decisions he favored.
This is not about creating new seats. This is about filling seats that exist, seats that have been authorized by Congress for many years, seats that the Judicial Conference continues to recommend be filled, and seats that my Republican colleagues pushed to fill not so many years ago. This is not ``court packing.''
Now, I remember how the DC Circuit looked after President Bush's last appointee was confirmed in 2006. The Court had seven Republican appointees and three Democratic appointees. Other circuits were similarly lopsided as well. Some might see that as packing the courts.
But I do not see it that way. A President must do his or her job making nominations to ensure that the judicial business of the American people gets done over time, long after that President leaves office. That is how our system works.
I supported two of President Bush's DC Circuit nominees, John Roberts and Thomas Griffith, and I supported cloture on a third, Brett Kavanaugh. I supported other controversial Bush circuit court nominees, sometimes to the chagrin of many on my own side. I did so because I believed those nominees were qualified and could be fair. I believe very deeply that the judiciary is too important to play partisan games with. That is exactly what is going on. Why should I continue, as a member of the Judiciary Committee with the second most seniority, when the administration changes, to step out and support any new Republican's nominees? I have done it in the past. I hoped to break this deadlock of partisanship. I had hoped we could vote when a nominee is qualified regardless of party. This nominee, if a motion to close off debate is not granted, shows me that the atmosphere is such that this can never be the case and that I, as someone on the Judiciary Committee who has been willing to cross party lines to vote for a qualified nominee, should cease and desist in this regard. That is the message of this nominee to me.
Think of this woman and her history: Army wife, mother of two, appellate lawyer, Solicitor General's office, and the tenth greatest number of Supreme Court appearances in the last 12 years. She is going to be denied, and no one has cast any blemish on her academic ability or her moral ethic. So the only thing I am left with is intense partisanship.
Please, let there be some Republicans who want to change the nature of this place and begin that change with the recognition that we have a superior woman. In a country where the majority of people are women, the number of women on this court is in the minority, and there is a need for bright, informed, legal talent. This woman is one of them. I hope she will survive cloture.
I ask unanimous consent that the article from Bars and Stripes be printed in the Record.
I yield the floor.