President Obama on Tuesday made the first move in what will probably be a nasty battle over the nation’s second-most important court, nominating three lawyers all at once to the U.S. Court of Appeals for the District of Columbia.
If Washington’s rhetorical prologue to this announcement is any indication, in the coming weeks you’re going to hear conservatives insist that the president is trying to “pack,” “stack” or “cram” the court with judges who will be friendly to his regulatory agenda. The court doesn’t need all those judges, they will argue. The implication will be that the nominations are somehow illegitimate on procedural principle.
Liberals, meanwhile, will actually feed these attacks by insisting that the D.C. Circuit is ideologically warped. Obama has only appointed one person to the court, and Republican nominees still dominate its bench. Those conservative judges have been hostile to the president’s agenda, so it’s necessary to rebalance the court with more Obama nominees.
Both arguments are tuned to incite each party’s base. As is often the case with such things, both also miss the point entirely.
The D.C. Circuit has three open seats. Obama is not trying to create new ones using some kind of FDR-era trickery, as Republicans are implying. He has every right to nominate men and women to each of those spots, and it is the Senate’s duty to give them each a fair hearing. That liberals will be happy to see the ideological disposition of the court change — and might say so — does not change any of that. The system will not work if senators deviate even more than they already have from the principles that underlie it: The president gets to pick the nominees; the Senate gets to ensure they are well-qualified; and the people get their say at the presidential ballot box.
True, Republican senators can always try to formally reduce the size of the court. That is their right. But that move would contradict the non-partisan judicial conference, which just asked the Senate to hold the court at its current size. In the context of an already very-political dispute, slashing the size of the court would be a very dangerous line to cross. It would inject even more partisanship into the judicial nomination process, and Republicans would deeply regret their decision the next time a Republican president wanted to get his or her nominees on the bench.
Liberals, meanwhile, need to stop talking as though a vote for or against Obama’s nominees is a vote for or against the Obama agenda. It’s not. The Senate’s vote is about ensuring that the president’s picks for lifetime appointments to a major court have the experience and expertise to serve. Supporting — or opposing — them on other grounds might feel good. But, like GOP filibusters, doing so corrodes the system. In particular, if Senate Democrats want to use Republican opposition to Obama’s new nominees as reason to rewrite Senate rules, they must argue that they are upholding the system, not dismantling it for partisan advantage.
There does not need to be a war over the D.C. Circuit, but if there is one, as seems likely, it does not have to result in another sad milestone in the politicization of judicial nominations — despite what you might hear over the coming weeks and months.