The Millett Nomination: A Case in Reverse Affirmative Action by Senate Republicans

Republicans on Thursday blocked another Obama judicial-appointee.

Patricia Ann Millett in June 2013, when her nomination to the D.C. Circuit Court of Appeals was announced. (Manuel Balce Ceneta/Associated Press)

No less than 43 Senate Republicans Thursday afternoon used a filibuster to block the judicial nomination of Patricia Ann Millett for a spot on the D.C. Circuit Court of Appeals, the most important federal court short of the United States Supreme Court. Thirty-seven did so directly, three by voting "present" and three by simply not voting at all. And so another eminently-qualified candidate for public office, a legal expert willing to make a great financial sacrifice to serve her country, has been rejected for reasons everyone agrees have nothing at all to do with her substantive qualifications for the job.

Who, exactly, is Patricia Ann Millett? All you need to know comes from this headline, from an organization devoted to military spouse attorneys: "Faith and Family at the Core of Military Spouse DC Circuit Nominee Patricia Millett." Got that? The Republicans in the Senate just filibustered the nomination of a highly-talented lawyer and hard-working woman of faith who is married to a member of our armed forces. In doing so, by defeating today's cloture vote, they prevented this nominee from re-joining the federal government even though Millett received enough votes to pass a straight-majority vote for her post.

This is self-destructive politics at its worst—and precisely the sort of nihilism we just saw with the aborted government shutdown over Obamacare. There, the GOP shut down the entire government because it does not have the votes to repeal the Affordable Care Act. Here, because Republicans do not have enough votes in the Senate to statutorily decrease the size of the D.C. Circuit, they have resorted instead to effectively reducing the size of it by blocking the nominations of worthy candidates like Millett and Caitlan Halligan. And they have done so by making the patently frivolous argument that the understaffed appeals court, the feeder court to the Supreme Court, doesn't need more judges.

Millions of words already have been written—many of them by me—about how bad an idea these judicial filibusters are. They undermine the rule of law. They hamper job growth by fostering intolerable delays in the resolution of cases within the federal legal system. They deprive the federal government of the considerable talent of brilliant legal minds. And, no, it is no answer, not any more anyway, to bring up those past instances where Democrats filibustered Republican nominees. If the comparison were apt a few years ago it is no longer apt today. This is a whole new level of obstruction, over mainstream nominees,  and two wrongs, even in national politics, still do not make a right.

Let me now introduce a new concept to this endless debate. I would be willing to bet that every single one of those GOP senators who struck down Millett's nomination today are opposed to the concept of "affirmative action" and would agree with the premise, if not the text, of the following statement: "Each individual seeking a job should be judged in his or her own right, according to his or her own talent, based upon her own experiences and qualifications, without regard to outside preferences or bias." And yet this is precisely the standard that Senate Republicans have just ignored in rejecting Millett.

She was not judged by her qualifications as a lawyer, or as a former member of the Solicitor General's Office, or as a magna cum laude graduate of Harvard Law School. She was not judged by the quality of the arguments she briefed and argued before the United States Supreme Court, or by the contents of the book she has written, or the way in which she once clerked for a federal appeals court judge. She was rejected by these Republican senators solely because she represented a change in the dynamic of the D.C. Circuit—the ninth sitting judge who would essentially break a 4-4 ideological tie that now exists on that bench.

That choice by those senators, I submit, is every bit as much a form of affirmative action as are the so-called "quota" policies they are so quick to decry in so many other circumstances. And that is what makes today's vote in the Senate particularly hypocritical. There should be no "quotas" when it comes to filling the empty benches at the D.C. Circuit. At a minimum, Patricia Millett deserved an up-or-down vote in the Senate. She deserved to have her nomination evaluated on its merits and not on the basis of some long partisan game.