Is President Obama poised to “pack” the federal appeals court in Washington?
“A type of court-packing reminiscent of FDR’s era,” warned Iowa Sen. Chuck Grassley. “Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch.”
Democratic senators threatening to curtail the filibuster, added Senate Minority Leader Mitch McConnell of Kentucky, want to “pack the D.C. Circuit so it can rubber-stamp the president’s big government agenda.”
When it comes to judicial vacancies, and especially the powerful D.C. Circuit, “pack” is the verb of choice, with its sinister Rooseveltian overtones of a president maneuvering to game the system.
Don’t fall for it.
At the risk of repeating history that should be obvious to anyone entrusted with the authority to offer advice and consent, FDR’s court-packing scheme deserved that derogatory phrase. Roosevelt proposed expanding the number of justices on the Supreme Court in order to add members more sympathetic to the New Deal.
Obama’s diabolical plan? To submit nominees to the lower court for existing vacancies.
The judicial nomination wars, particularly when it comes to the D.C. Circuit, are tribal in intensity and biblical in scope. The initial refusal to confirm John Roberts begat the refusal to confirm Elena Kagan, which begat the refusal to confirm Miguel Estrada, which begat the refusal to confirm Caitlin Halligan.
Neither party has clean hands or pure motives. Well-qualified nominees from presidents of both parties have ended up as political roadkill in the process. Others have had to endure lengthy delays — George W. Bush nominee Judge Brett Kavanaugh waited 1,036 days — before being confirmed.
If the president is justifiably frustrated because the Senate has balked at his selections — Halligan withdrew her nomination after it languished for 2½ years — he is also to blame for having dithered in submitting nominees for other empty spots. He inherited a D.C. Circuit with two vacancies — and took 20 months to make his first nomination (Halligan) and more than 40 for his second (Deputy Solicitor General Sri Srinivasan, who was confirmed unanimously by the Senate last week).
The U.S. Court of Appeals for the District of Columbia Circuit matters — it merits the shorthand description of second in importance only to the Supreme Court — because of its heavy regulatory workload, passing judgment on everything from clean air to workplace safety to consumer protection.
With Srinivasan’s confirmation, the court will have three vacancies among its 11 spots. The eight active judges will be split 4-to-4 between Republican and Democratic appointees, and Senate Republicans would be delighted to leave things there.
But that picture of balance is misleading. Six additional judges — five of them Republican appointees — have senior status, meaning they continue to hear cases.
Their presence matters. Earlier this year, senior Judge David Sentelle, joined by two other Republican appointees, declared Obama’s recess appointments to the National Labor Relations Board invalid, calling into question hundreds of rulings by the labor board and other agencies with recess appointees.
Republicans say the D.C. Circuit does not need the full complement of 11 judges. Grassley has proposed legislation that would cut it to eight. He cites the circuit’s relatively smaller workload — 108 appeals filed per authorized judgeship, versus 425 for the New York-based 2nd Circuit and 583 for the 11th Circuit in Atlanta.
But Grassley and his fellow Republicans expressed no qualms about confirming nominees to the 9th, 10th and 11th seats on the D.C. Circuit during the George W. Bush presidency. Nothing has changed, except the occupant of the Oval Office.
More important, the caseload numbers do not tell the whole story. The regulatory disputes that make their way to the D.C. Circuit can be notoriously complex and time-consuming; the 11th Circuit numbers are inflated by a large number of prisoner petitions, which are easily disposed of.
For both sides, this is not about judicial efficiency: It’s about raw judicial power. Realistically, Democrats would be lucky to get one additional D.C. Circuit nominee confirmed before the 2014 election, when the Senate could easily tip to Republican control.
Frustrated Democrats will be tempted to change the filibuster rules in response. That would be a mistake they could soon regret; a Democratic Senate minority seeking to block a Republican-nominated judge is not far-fetched.
But it is outrageous to accuse Obama of overstepping in daring to try to fill these vacancies. Republicans aren’t unhappy about the size of the court. They’re unhappy about the president elected to make appointments to it.
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