Mr. Wilkins goes to the Senate

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It was 21 years ago last month that Harvard-educated attorney Robert Wilkins was traveling in a car pulled over for going 5 mph over the posted speed limit on Interstate 68 in Western Maryland. But rather than receive a ticket, the group, all African-American and all members of the same family, were forced to stand by the road while their vehicle was searched and a drug-sniffing dog summoned to the scene.

They had been returning from a relative's funeral, and the fruitless investigation caused them to be detained for 45 minutes. The encounter led to a lawsuit, Wilkins v. Maryland State Police, that put an end to racial profiling in traffic stops in the Free State. The litigation served as a model for similar challenges against "driving while black" enforcement practices by police in other states.


The landmark case made Mr. Wilkins, then a public defender in Washington, a hero in the civil rights community. Two decades ago, he told this newspaper that he wasn't a victim but a "warrior" on behalf of a constitutional principle who just wanted to "make sure that this stopped happening to other people."

Today, Mr. Wilkins faces a new kind of discrimination. Now employed as a federal district court judge, he was one of three people nominated to fill vacancies on the U.S. Court of Appeals for the District of Columbia Circuit today by President Barack Obama. Republicans are already lining up to oppose those nominations with charges that Mr. Obama is "packing the court," even though he is merely filling three unoccupied seats on the 11-member bench.


Mr. Wilkins' fellow nominees are two women, Georgetown University law professor Cornelia "Nina" Pillard and Patricia Ann Millett, an experienced appellate lawyer. Their appointment would bring greater diversity to a court that is often described as the nation's second most influential, after the U.S. Supreme Court, because it reviews so much federal regulation.

Senate Republicans have been slow to approve President Obama's judicial nominees generally — his first-term nominees having waited three times longer to receive confirmation votes than those of George W. Bush — but the GOP appeared primed to make a stand with the D.C. appeals court even before the nominations were revealed.

In addition to the ridiculous claim of court packing, GOP senators are offering the argument that, well, the court just isn't all that busy, at least compared to other federal courts. Senator Charles Grassley of Iowa has suggested the seats shouldn't be filled at all and expressed outrage that Mr. Obama would hand down three nominees at once.

But this is, to put it mildly, a bit of obfuscation. What Senator Grassley and his fellow Republicans like about the D.C. court is their current advantage in appointees. Fifteen of the last 19 appointments to the court were made by Republicans. And the caseload has actually increased since 2005, when President Bush last nominated a judge.

And here's where the Republicans' disingenuousness is really on display. When the court creates three-judge panels to hear cases, it draws not only from the eight judges currently serving (four Democrat-appointed and four Republican-appointed) but from a pool of six retired senior judges, five of whom are Republican nominees. Since most of the panels have at least one senior judge, the Republican viewpoint currently holds advantage.

Bad enough that the Senate has become so dysfunctional that a 60-vote majority is now required to do most anything of substance, but for the minority to threaten to block nominees on the basis of presumed ideology is reminiscent of the racial profiling Judge Wilkins previously encountered. If the judicial nominees were all white, male and Republican, would Senator Grassley be talking about the court's workload? Not likely.

Elections matter. Presidents have a right to nominate their choices for the judiciary. The Senate has the right to advise and consent. Should Judge Wilkins or any of the other nominees be judged unfit for the office, opponents should vote against them. But what's going on here appears to be an effort to keep power in the hands of conservative judges who can block the kind of federal regulations — those designed to keep the environment clean or perhaps protect consumers or prevent bank failures — that the GOP so often find distasteful.

That's shameful, and what an irony that this sort of discrimination is being perpetrated against Judge Wilkins. If anything, it is an argument for the Senate to change its rules and not allow 40 senators to block a judicial nomination without so much as a genuine filibuster on the chamber's floor. As Mr. Obama observed, the nominees deserve an up-or-down vote. And they deserve it in the next two months.