As I’ve be researching the years of nomination politics that led up to Sonia Sotomayor’s historic appointment as the first Hispanic justice, I’ve been reminded that appointments to top federal courts require not only top qualifications but an ability to maneuver in a sometimes ruthless system dominated by grudges and score-settling.
I’ve thought of this most recently in light of Tuesday’s scheduled Senate vote on whether to cut off debate and hold a straight up-or-down tally on Caitlin Halligan, formerly the New York state solicitor general, for a seat on the Washington, D.C.-based federal appeals court. (Cloture – which ends debate — requires a three-fifths majority, 60 votes; approval of a nominee needs only a simple majority, 51 votes.)
At this point, Halligan’s qualifications, which include a Supreme Court clerkship, the highest rating from the American Bar Association, and current service as general counsel in the Manhattan District Attorney’s office, have become almost beside the point. Nominations to the D.C. Circuit, often dubbed the nation’s second most important court, have become nearly as politicized in recent years as those to the Supreme Court.
The D.C. Circuit, which resolves disputes over civil rights law, environmental, health and labor statutes, and myriad other regulatory matters, has been a stepping stone to the Supreme Court. Chief Justice John Roberts served on the D.C. Circuit, as did Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg.
Nominations to this circuit rarely fly under the radar, and its nominees, more than most others, need the right insiders and the most vigilant supporters to monitor – and counter — opposition. This is when constant phone calls and letters count, to keep the pressure on key senators.
And then there’s the ghosts of nominations past. As dueling senators have mentioned as they’ve staked out ground on Halligan, in the late 1990s Republicans stalled on two D.C. Circuit nominees of President Clinton, Allen Snyder and Elena Kagan. In the early 2000s, Senate Democrats repeatedly filibustered Miguel Estrada, a nominee of George W. Bush. (Kagan, of course, got the better of the deal as she ended up confirmed to the Supreme Court, ten years after her D.C. Circuit nomination languished.)
In the past two decades, slightly more GOP nominees have made it onto the D.C. Circuit than Democratic nominees. During his two terms, President George W. Bush successfully named John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. Before that, during his two terms, Bill Clinton appointed Judith Rogers, David Tatel and Merrick Garland.
Caitlin Halligan is President Obama’s first nominee to D.C. Circuit. If the Senate does not vote on her nomination soon, it’s hard to see how – in these politically polarized times — she or anyone else selected this term would clear the Senate before the 2012 presidential election.