Republicans Charge Obama With Court-Packing For Trying To Fill Empty Seats

05/28/2013 06:00 pm ET | Updated May 29, 2013

WASHINGTON -- Republican senators are fuming about President Barack Obama's attempt to fill empty seats on the D.C. Circuit Court of Appeals, charging him with "court-packing" and alleging that his push to confirm nominees is all politics.

But not only is Obama not "court-packing" -- a term describing an attempt to add judges to a court with the goal of shifting the balance, not filling existing vacancies -- but Republicans' efforts to prevent Obama from appointing judges amount to their own attempt to tip the scales in their favor. What's more, some of the GOP senators trying to prevent his nominees from advancing previously voted to fill the court when there was a Republican in the White House.

As it stands, the powerful D.C. Circuit has 11 seats, three of which are vacant. Obama has signaled plans to put forward nominees for all three open slots as soon as this week. But Sen. Chuck Grassley (R-Iowa) and other Republicans are pushing legislation that would eliminate those seats and keep the court where it is: with eight judges, four of whom were appointed by Democrats and four of whom were appointed by Republicans.

Grassley has argued that the court simply doesn't need to have three more judges because it has a lighter workload than other circuit courts -- a stance that Democrats say overlooks the fact that the court is second in stature only to the Supreme Court and takes on particularly complex cases. But Grassley has also suggested that Obama is trying to pack the court.

"I'm concerned about the caseload of this circuit and the efforts to pack it," Grassley complained during a Senate Judiciary Committee hearing last week, charging the administration -- six times -- with court-packing. Of course, Grassley was quickly corrected by a colleague, who said that court-packing isn't about filling existing vacancies.

Still, Grassley isn't alone in making these charges. During floor remarks last week, Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of plotting with the White House "to pack the D.C. Circuit with appointees," and Sen. Mike Lee (R-Utah) worried aloud that Democrats may "decide to play politics and seek -- without any legitimate justification -- to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda."

Even The Wall Street Journal piled on last week, arguing in an editorial that the D.C. Circuit "doesn't need new judges to handle the workload" and filling those vacant seats would be akin to "packing the court for political ends."

But it is perhaps a sign of just how partisan the Senate has become when a president's effort to nominate judges for empty seats is equated with court-packing. Presidents have a constitutional imperative to try to fill judicial vacancies. In fact, one could make the case that Senate Republican efforts to prevent Obama from filling vacant court seats -- thereby keeping those courts from having any more Democrat-appointed judges -- are actual instances of court-packing.

Grassley and McConnell both voted to fill empty slots on the D.C. Circuit under former President George W. Bush. On June 14, 2005, both voted to confirm Judge Thomas Griffith, giving the court 11 active judges at the time. A year later, on May 26, 2006, Grassley and McConnell voted to confirm Judge Brett Kavanaugh to the D.C. Circuit. That vote put the court at 10 active judges.

Wrangling over the D.C. Circuit comes at a time when Senate Republicans are using a variety of methods to block Obama's nominees for different posts. Some are declining to put forward recommendations for nominees at the beginning of the process, some are causing delays in floor votes once nominees clear the Senate Judiciary Committee, and some are dragging out the committee process by submitting hundreds of questions for nominees to answer.

"Gina McCarthy, EPA [nominee]: more than 1,100 written questions after her hearing had closed," Senate Majority Leader Harry Reid (D-Nev.) complained last week. "People have gotten hundreds and hundreds ... just to stall."

There was a brief reprieve in the nominations fight last week when the Senate unanimously voted to send Sri Srinivasan to the D.C. Circuit, which filled another vacancy on that court. McConnell initially tried to delay Srinivasan's vote, but at a time when Democrats are signaling they may be ready for a fight over filibuster reform, the GOP leader relented and agreed to hold the vote last week.

Not all conservatives are eager to compare Obama's efforts to fill empty judge slots with court-packing. Byron York, chief political correspondent for the Washington Examiner and Fox News contributor, expressed puzzlement on Twitter at how some could make that leap:

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