D.C. Circuit’s Newest Judge Had Already Sparked Two Landmarks

Robert Wilkins fought against racial profiling as a lawyer; as a nominee, he sparked the Democrats’ “nuclear option”

(As part of our ongoing coverage of the U.S. Court of Appeals for the D.C. Circuit, we will be publishing brief profiles of the judges from time to time.)

Robert Wilkins, the newest member of the Court of Appeals for the D.C. Circuit, has a surprising judicial resume. Wilkins comes to the bench after a career as a criminal defense lawyer and civil-rights advocate. That’s mildly unusual, even for a judge appointed by Barack Obama; like Bill Clinton, Obama has tended to favor “safe” judicial nominees, with backgrounds as prosecutors or corporate lawyers.

Even more surprising, however, is the fact that Wilkins has been not merely the lawyer, but the plaintiff, in a landmark civil rights case. Nearly a quarter-century later, his nomination to the Court of Appeals sparked another landmark decision, this one by the Senate.

In May 1992, Wilkins was a passenger in a car on Interstate 68 in Western Maryland. It was a somber family party, heading home to Washington D.C. from the funeral of Wilkins’s grandfather in Chicago. Late on a Sunday night, the car was stopped by a Maryland State Trooper for exceeding the speed limit. The trooper asked for permission to search the car and the family’s suitcases; when they refused, he detained them at the side of the road until drug-sniffing dogs could be brought in. Hours later, when the dogs smelled nothing, they were able to continue home.

The trooper explained that the Maryland State Police was stopping people in rental cars on suspicion of drug trafficking. The explanation didn’t sit right with Wilkins. With the help of the American Civil Liberties Union, he became not only the lead plaintiff in a class-action lawsuit, but also co-counsel. The case produced discovery showing that the police agency intentionally profiled drivers based on race. The case resulted in two landmark settlements that, for the first time, required systematic compilation and publication by police regarding who was subject highway stops and searches, the justification for stopping them, and the result of the search.

Wilkins was born in 1963 in Muncie, Indiana. He graduated cum laude from the Rose-Hulman Institute of Technology in Terre Haute, Indiana, with a degree in chemical engineering. Wilkins then went on to obtain his J.D. from Harvard Law School in 1989. At Harvard, Wilkins served as Executive Editor of the Harvard Civil Rights-Civil Liberties Law Review.

After graduation, Wilkins clerked for U.S. District Judge Earl Gilliam of the Southern District of California, the first African American appointed to that court. In 1990 Wilkins joined the Public Defender Service in Washington, D.C. PDS, an independent federally funded organization, is a national leader in providing legal services for poor people in criminal and juvenile proceedings. By 1995, he was promoted to chief of special litigation, handling the Service’s most complex and serious cases. In that role, Wilkins often took the lead in cutting edge cases on DNA admissibility, the scope of expert testimony, and First Amendment issues.

During his career at PDS, he served on the District of Columbia Truth in Sentencing Commission, formerly the Advisory Committee on Sentencing, an independent agency tasked with advising the D.C. Council on issues that advance fair and coherent sentencing policy for criminal charges.

Wilkins also played a key role in getting Congressional funding for the National Museum of African American History and Culture. Ten years after joining the Public Defender Service, Wilkins (risking a steady income at a time when his wife was seven months pregnant with their second child), left PDS and committed himself to establish a nonprofit organization advocating the creation of the museum. In 2003, both the Senate and the House of Representatives passed Public Law No. 108-184. The Museum is now under construction on the National Mall.

In 2002, Wilkins became a partner at Venable LLP, a prominent corporate law firm that represents clients such as Marriot International, Panasonic, and BIPI Pharmaceuticals.

At Venable, Wilkins specialized in white-collar defense, intellectual property, and complex civil litigation. The ACLU of Maryland named Wilkins Pro Bono Attorney of the Year in 2001. In 2008, the Legal Times recognized Wilkins as one of the 90 “Greatest Washington Lawyers” of the last 30 years, and the National Law Journal named him as one of the 40 under 40 most successful litigators in America.

On June 4, 2013, President Obama nominated Wilkins to the Court of Appeals. The Senate Judiciary Committee approved Wilkins’s nomination by a straight party-line vote of 10-8. Wilkins’s actual nomination faced a Republican filibuster on the Senate floor. The Republicans did not attack Wilkins directly; as they had with the previous three confirmed nominees, they argued instead that another judge was not needed. Unspoken was the fact that confirmation of Wilkins would create a majority of Democratic appointees on the court.

On November 18, 2013, the Senate voted to approve Wilkins by a vote of 53-38–just shy of the 60-vote supermajority traditionally required, meaning the nomination failed. On November 21, 2013, Senate Majority Leader Harry Reid and other Senate Democrats voted to change the precedent regarding cloture by requiring only a simple majority for cloture of most nominations by presidents—the so-called “nuclear option.” Despite the Democrats’ success, Reid was unable to hold another vote on Wilkins’ nomination before the Senate adjourned for the year on December 20, 2013. Wilkins was finally confirmed on January 13, 2014.

Wilkins’ confirmation marks the first time that the D.C. Circuit has had a full complement of judges since Clarence Thomas resigned to become a Justice of the Supreme Court over 20 years ago.

John Beaton

John Beaton is a second-year student at Washington College of Law at American University.