November 07, 2013

Kaine on Senate Floor: Is There a Double Standard for Women Nominees to the DC Circuit?

WASHINGTON, D.C. – Speaking on the Senate floor today, U.S. Senator Tim Kaine addressed the pattern of Republican obstruction of women appointed to the United States Court of Appeals for the D.C. Circuit, raising the question of whether there is a double standard for women nominees to this court.

Since Kaine took office eleven months ago, two supremely qualified women nominees, Caitlin Halligan and Patricia Millett, have been filibustered in part because of a Republican argument that the D.C. Circuit does not have a large enough workload to justify the confirmation of more than eight judges to the eleven-seat court. The next nominee to the D.C. Circuit, Nina Pillard, is also expected to be filibustered when her nomination comes to the Senate floor next week.

Below are excerpts from Kaine’s remarks on the floor:

“This is a matter that I feel very strongly about. And I do want to offer a few words to basically just raise a question whether there is a double standard for appointment of women to this particular court, the D.C. Circuit.

“Before I tackle that question, I will just say…I am concerned more broadly about what I consider sort of a pattern of nullification. If there's a law we don't like, well, maybe we -- and we can't get it overturned, there seems to be efforts to defund it or even shut down government, or in this case what I would call the decapitation strategy. If you don't like the National Labor Relations Board, just don't appoint people to run the business. Or the Bureau of Alcohol, Tobacco and Firearms. Or in this case, the D.C. Circuit.”

“The D.C. Circuit has an allotted number of judicial positions. This isn't something that the president chooses. Congress sets it on the advice of the judicial conference. The judicial conference has not suggested that the number should be shrunk. There are eleven judges and three are currently vacant. The strategy of blocking appointments is sort of a nullification of law which I think is troubling.

“But let me get to the question of what I consider to be a double standard that is blocking some wonderful candidates from going on to this court. My legal practice for 17 years was in the civil rights area. And in the civil rights area there is a legal notion called a pretext. When something bad happens, you don't get an apartment or you don't get a job or you don't get your bank loan or your homeowner’s insurance policy. And if a reason is asserted for that but the reason just falls apart, it's just completely illogical, it's not borne by the facts, and that's called a pretext.

“I worry in this instance that there are a couple of pretexts going on. Because the instances that have been cited by my colleagues, the filibustering of Caitlin Halligan, the filibustering of Pattie Millett and now the filibuster of Nina Pillard, are really based on two pretexts, and let me go after them.

“Why are these candidates, Caitlin Halligan who practiced before the Supreme Court, was Solicitor General for the state of New York, did such a good job, why block her?

“Why block Pattie Millett, who worked in the Solicitor General's office under both administrations, supported by both administrations.

“Why block Nina Pillard? She was the Appellate Attorney before the United States Supreme Court who argued the need to admit women students to the Virginia Military Institute in my state, which they have done and it's working very well. One of Nina Pillard’s supporters was the superintendent of VMI who was being sued. Cy bunting has come forward and said Pillard would be a great circuit justice.

“So what's the reason that is being asserted to blocking these women? The reason that is being asserted is there is not enough of a workload on this court. Madam President, I think it's clear that the assertive lack of a workload is a pretext, it's nonexistent. It's a phantom argument that gets brought up whenever we want to but then abandoned whenever we want to.

“My evidence for that is pretty clear. There are two circuit courts, the eighth and the tenth circuit that have lower workloads, lower caseload per judge than the D.C. Circuit. But we have been approving nominees to that circuit this year without raising any question about workload. So we will put folks on the eighth and tenth circuit even though they have a lower workload and no one complains. The other side doesn't raise that.

“And I asked members, why are you raising that here when you weren't raising it on other courts, and they said well, it's because the D.C. Circuit is the second highest court in the land. It's a more important court. It's a court that has more juice. Members on the D.C. Circuit might be on the Supreme Court. So the workload isn't really the issue on the other courts. It's just an issue on this court apparently because the court is so important.

“Well, let's now drill down on what's happened just this year. … [Caitlin Halligan] was filibustered and one of the principal asserted reasons was there is not enough workload on the court. So she couldn't even get an up-or-down vote. Within two months, we had another nominee, a superbly qualified nominee, I might add, who I introduced before the Judiciary Committee, Sri Srinivasan. We approved him in the Senate 93-0.

“Now, he's a male. No one raised one question or mention of the workload on the D.C. Circuit. We had just turned down Caitlin Halligan because you don't get an up or down vote because there is not enough workload. Within two months a 93-0 vote. I want to say, again, Judge Srinivasan is very qualified to be on this court, but the workload rationale just disappeared.

“But it didn't go away - because as soon as Pattie Millett is nominated, as was indicated, not only a superb appellate attorney who has argued more cases before the supreme court than all but a handful of women in the history of this country, who has argued cases before the D.C. Circuit where we hope she will sit and other circuits as well, as soon as Pattie Millett is nominated, well, the workload issue pops back up. The court doesn't have enough workload.

“And now Nina Pillard is being told that she is going to be blocked also because the court doesn't have enough workload.

“I assert that this workload issue is a complete pretext. It's not raised about other courts, and it's not raised about other nominees. Even this year it hasn't been raised, but it has been raised with respect to three superbly qualified women, Caitlin Halligan, Pattie Millett and Nina Pillard.

“And so that -- as I just watched that, and I have only been here 11 months, I don't know all the prehistory…the women candidates are being treated differently on this court, the second highest court in the land, this court that has got kind of juice from which people may go to the supreme court. The women candidates are being treated differently. They are being blocked by concerns about workload that are not being applied in an evenhanded way.”