102 Geo. L.J. Online 1 (2013)

handle is hein.journals/gljon103 and id is 1 raw text is: The Nomination of Three New Judges to the D.C. Circuit:
To Support and Defend the Constitution
LISA T. MCELROY*
On June 4, 2013, Barack Obama nominated Patricia Millett,1 Robert Wilkins,2 and Cornelia
Pillard3 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 court5 to the left.,6
*Associate Professor of Law, Drexel University School of Law; Visiting Associate Professor of Law, University
of Denver Sturm College of Law, 2013-14. J.D., Harvard Law School, cum laude; M.P.H., the University of
Michigan; A.B., Dartmouth College. My appreciation to Amanda NeMoyer for her statistical analyses and to Evan
Slavitt as well as Professors Justin Pidot, Dan Filler, Alan Chen, Mary-Rose Papandrea, Lyrissa Lidsky, and David
Cohen for reading and critiquing drafts of this work. Thanks go to Meghan Leemon at the University of Denver
Sturm College of Law and John Cannan at the Drexel University School of Law for helping me with data entry.
1. Patricia Millett is my close friend, but she has had no involvement in or knowledge of my research into this
issue. She was confirmed by the Senate on December 10, 2013, by avote of 56-38.
2. Robert Wilkins is currently a district judge on the United States District Court for the District of Columbia. He
is expected to be confirmed to the D.C. Circuit within days of this writing.
3. Cornelia Nina Pillard was confirmed by the Senate on December 12, 2013, by a vote of 51-44.
4. See, e.g., Packing the Court, WALL ST. J., May 19, 2013, at
http://online.wsj.com/news/articles/SB 10001424127887323628004578456872854815956. See also, e.g., 159 CONG.
REC. S8446 (daily ed. Nov. 21, 2013) (statement of Sen. Jeff Sessions (R-AL)) (So the President is being pressured
by a lot of these special interests, and there are others who are advocating these kind of actions. But the court is a
court that is well constituted to do its duty, and it will continue to do so and needs no more judges. We don't have
the money to fill them. We don't have the money to spend on it just to allow the President to pack the court with
some of his nominees that will more likely advance an agenda. At least the agenda that he and his activist friends
seem to favor that.), 159 CONG. REc. S7710 (daily ed. Oct. 31, 2013) (statement of Sen. John Comyn (R-TX))
(Well, I am sorry to reach the conclusion, but I think the evidence is overwhelming that what the President is trying
to do by nominating these unneeded judges to this critical court, the second most powerful court in the Nation, is he
is trying to pack the court in order to affect the outcomes.). Of course, many disagree with this statement,
differentiating between filling the three existing vacancies on this court and FDR's attempt to add Justices to the
United States Supreme Court. See, e.g., 159 CONG. REC. S7701, (daily ed. Oct. 31, 2013) (statement of Sen. Dianne
Feinstein (D-CA)) (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.')
159 CONG. REC. S7710 (daily ed. Oct. 31, 2013) (statement of Sen. Debbie Stabenow (D-MI)) (I wish to make a
comment, if my colleague will excuse me. I have to say I am amazed to hear that we are court packing when what
we are talking about is trying to fill three vacancies on a court. I hadn't heard that before with other Presidents.
Hopefully, we can fill vacancies and try to do it in a bipartisan way.).
5. Many consider the D.C. Circuit to be the second-most important court in the country, after only the U.S.
Supreme Court.

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