Scroll video to about 1:09:27:

“Thank you Mr. Chairman. Ms. Millett thank you for being here. Thank you for your able testimony. You and I have known each other a long time. And you are a talented and skilled appellate advocate. You are someone who has earned high respect in the Supreme Court bar, which is a community where earning respect there means something. And so I congratulate you on your nomination and your able testimony this morning.

I will also note that you find yourself in the midst of a broader battle, and a battle on issues, many of which are unconnected to your professional background and qualifications but issues that sadly have consumed the D.C. Circuit for decades. There is a lot of political games [sic] when it comes to judicial nominations.

Both sides have decried the political games concerning judicial nominations but unfortunately the D.C. Circuit, second only to the U.S. Supreme Court, has been a battleground on both sides for the politicization of judicial nominations. And a number of excellent nominees have been named to the D.C. Circuit previously by Republican presidents, and our friends on the Democratic side of the aisle have chosen to prevent their nominations to go forward and to prevent them for what I believe were partisan reasons.

Peter Keisler, who has been discussed already in this hearing, who is a talented and able lawyer and yet our friends on the Democratic side of the aisle did not allow that nomination to proceed. Miguel Estrada, someone whom you and I both know well, is another superbly talented appellate lawyer, someone whose nomination was made at the beginning of the Bush Administration, and the Democrats in the Senate repeatedly acted to stop his nomination from proceeding. Most tellingly, a senior Democrat then on this Committee, in writing, in memos that become public, stated that Miguel Estrada’s confirmation must be prevented, quote, because he is Hispanic, which in my view was troubling, was cynical, was nakedly partisan, because Miguel was viewed I think with good reason as having a significant prospect of being the first Hispanic U.S. Supreme Court nominee. And so Senate Democrats wanted to make sure Miguel didn’t get anywhere near the D.C. Circuit so that he would not be allowed to build a judicial record that could serve as a predicate to go onto the Supreme Court. 

Now, right now, the D.C. Circuit is evenly divided among active judges, with four Republicans and four Democrats and you find yourself one of three nominees from the President. The President and senior Democrats on this Committee have made clear that they want to pick a fight on the D.C. Circuit, they want to pick a fight on the D.C. Circuit, and unfortunately I believe part of this pressure, part of the effort of stopping qualified Republican nominees and then deciding to pick a fight now is a desire to pack the court. The D.C. Circuit has a been a court that has been holding this Administration accountable, and in particular holding rulemaking accountable that has been contrary to federal law. And I believe there is an activist base that is pressuring the President, that is pressuring senior Senate Democrats to get judicial nominees on the D.C. Circuit to protect the regulations coming from this Administration, and I think any effort to pack the court because the Administration doesn’t like the outcomes of judges applying the law fairly should be decried.

And so there are workload issues that I think need to be discussed, but I think there is a broader context that is irrespective of your fine qualifications, but to be honest was irrespective of Miguel Estrada’s qualifications or Peter Keisler’s. And so I think this is going to be a continued issue of discussion and significant agreement [sic] on the Senate because I think partisan politics has driven this Committee’s approach to the D.C. Circuit for over a decade. I think that is unfortunate. I would far rather see a situation where able judges were confirmed irrespective of that, but it is not consistent with our responsibility to allow one party to prevent qualified judges from going to the court and at the same time to enable packing the court to reach preferred outcomes.

So I thank you for being here, and I think it is regrettable the overall context of this dispute, which is as I said irrespective of your very fine professional qualifications. Thank you.