On June 4, 2013, Barack Obama nominated Patricia Millett, Robert Wilkins, and Cornelia Pillard 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 court to the “left.”

Inherent to the Republicans’ assertion—and, indeed, the Democratic response—was a critical assumption: the decision-making of judges is substantially affected by their ideology at the time of appointment. Moreover, the objectors explicitly asserted and the proponents implicitly assumed that those different votes would affect the panels ideologically in such a way that the outcome of a significant number of cases would change in ways important to the political agendas of each party.

Continue reading The Nomination of Three New Judges to the D.C. Circuit: To Support and Defend the Constitution on HeinOnline.