Halbig v. Burwell is far from over. The Obama administration has already announced its intention to ask the D.C. Circuit Court of Appeals for an en banc hearing, after a three-judge panel ruled today to uphold the original wording of the Patient Protection and Affordable Care Act (ACA).
If the court accepts, the full eleven-judge bench will be tasked with deciding whether to endorse or to reject the panel’s decision. But the possibility of en banc endorsement is slim — thanks to Harry Reid.
Reid’s decision last November to invoke the “nuclear option,” thereby reducing the number of votes required to end a filibuster from 60 to a simple majority, 51, allowed Senate Democrats to break the Republican filibuster against, and confirm the nominations of, three judicial nominees appointed by President Obama. Those appointees — Patricia Millett, Cornelia Thayer Livingston “Nina” Pillard, and Robert Leon Wilkins — now sit on the D.C. Circuit Court of Appeals, where they are likely to cast the deciding votes to overturn Halbig’s panel ruling.
Patricia Millett, a 50-year-old Maine native, holds a political science degree from the University of Illinois at Urbana-Champaign and a law degree from Harvard. In the mid 1990s she argued cases before federal and state appeals courts on behalf of the U.S. Department of Justice’s Civil Division, after which she became an assistant to the U.S. solicitor general. In 2007 she joined the D.C.-based Akin Gump Strauss Hauer & Feld, where she headed the firm’s Supreme Court practice.
A former Akin Gump colleague of Millett has described her as “completely objective and non-ideological,” but it’s hard to tell, since she refused during her confirmation hearing to answer a question regularly asked of second-year law students applying for clerkships. When Republican Senator Ted Cruz of Texas asked her to “characterize your judicial philosophy, and identify which U.S. Supreme Court justice’s judicial philosophy from the Warren, Burger, or Rehnquist Courts is most analogous with yours,” Millett responded:
While I have the greatest respect for the Supreme Court’s members, I cannot claim familiarity with any particular judicial philosophies the justices might possess. Nor do I have a judicial philosophy myself . . .
As Carrie Severino observed at the time, either Millett knows no Supreme Court justices in recent memory — an oversight that “would fall somewhere between unprofessional and malpractice” — or she chose to proffer a “transparently false response to a U.S. senator’s inquiry.” Neither option is flattering.
But one can get a sense where Millett might fall on the issues: In 2010 she became a trustee of the Lawyers’ Committee for Civil Rights Under Law, which last year issued a statement calling the verdict in the Trayvon Martin case “a tragic miscarriage of justice.” The “deeply disappointing” outcome, the group opined, proves that “much more work needs to be done to stamp out the ugly face of racism that still prevails in America.”
Nina Pillard, a 52-year-old Massachusetts native who also earned her J.D. from Harvard, began her legal career as assistant counsel at the NAACP Legal Defense and Education Fund. She served in the Office of the Solicitor General (alongside Millett), then in the Department of Justice’s Office of Legal Counsel, before joining the Georgetown law faculty full time in 2000.
At National Review Online’s Bench Memos, Ed Whelan slogged through Pillard’s numerous legal writings. The picture is of a judge not just liberal, but radical. A 2007 article delineating Pillard’s view of “reproductive rights” condemns women’s “historically routine conscription into maternity” and the notion of “women as a class of presumptive breeders.” One remedy, she suggests, is “egalitarian sex education,” which would give the federal judiciary broad involvement in public school sex-education programs. On the related subject of religious liberty, Pillard has shown herself at odds with the Supreme Court. At a 2011 press briefing for Georgetown’s Supreme Court Institute, Pillard said that “the big news [in Hosanna-Tabor Evangelical Lutheran Chuch v. EEOC] will be if the Court decides it for the Church.” She called the church’s argument “a substantial threat to the rule of law.” The Supreme Court did decide for the Church — unanimously.
Then there is Robert Wilkins, a third Harvard Law School alumnus who served from 1990 to 2002 in Washington, D.C.’s public defender’s office, then joined the D.C.-based law firm Venable LLP. Wilkins is best known not for his role as attorney but as plaintiff. He was the lead plaintiff in Wilkins v. Maryland State Police, which brought national attention to the question of racial profiling. The settlement agreement reached in the case required the Maryland State Police to stop using race as a basis for traffic stops and to maintain computerized records of all vehicle stops that involved drug-sniffing dogs. In 2003, that agreement was expanded to include several other provisions by which the Maryland State Police — and many other departments nationwide — still abide. Wilkins popularized the phrase “driving while black.”
Without the confirmation of Millett, Pillard, and Wilkins, the D.C. Circuit Court boasted an even partisan split: four Republicans, four Democrats. But Harry Reid’s nuclear November has all but guaranteed that the circuit court will come to Obamacare’s rescue.
— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute.