WASHINGTON -- It may not be factually accurate, but some Republican senators just can't resist accusing President Barack Obama of "court-packing" as he tries to fill empty seats on the D.C. Circuit Court of Appeals.
During a Wednesday hearing on one of Obama's key judicial nominees, Nina Pillard for the D.C. Circuit, Republicans on the Senate Judiciary Committee resurrected the claim that the president's effort to fill three vacancies on the court amounts to "court-packing." The term refers to an effort to increase the number of judge slots on a court with the goal of shifting its political balance, not to fill existing vacancies.
"The president appears to have targeted the D.C. Circuit in hopes that he can pack the court and stack the deck to his advantage," said Sen. Mike Lee (R-Utah).
Sen. Ted Cruz (R-Texas) noted that the Senate already confirmed a nominee to the D.C. Circuit this year, Sri Srinivasan, and argued that Obama's efforts to fill the court's remaining vacancies are politically motivated.
"I have deep concerns about what the administration is doing now with a package of three nominees to the D.C. Circuit after the Senate just confirmed a very qualified nominee," Cruz said. "I believe [this] is an attempt by this administration to pack that court."
Not only is the charge factually inaccurate -- the court has three empty seats, which the president is constitutionally required to fill -- but one could easily make the case that Republican efforts to prevent Obama from filling empty court seats, thereby keeping those courts from having any more judges appointed by a Democrat, are actual instances of "court-unpacking."
Scuffles over the D.C. Circuit come as Senate Republicans have been using a variety of methods to block Obama's judicial nominees. Tensions over stalled nominees have gotten so high that Democrats nearly proceeded with filibuster reform earlier this month, a standoff that was defused at the last minute as party leaders cut a deal that allowed some of Obama's executive nominees to get votes. That deal did nothing to unclog Obama's judicial nominees, though, and filling the D.C. Circuit is a major priority for the president.
Republicans haven't signaled much interest in allowing D.C. Circuit nominees to get a vote. As it stands, the court has 11 seats, three of which are vacant. Lee and Cruz are both are cosponsors of a bill by Sen. Chuck Grassley (R-Iowa) that would eliminate those three seats altogether 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, the ranking member on the Senate Judiciary Committee, re-upped that argument during Wednesday's hearing. He cited statistics that he said illustrated that the court has the lowest workload of all circuit courts. He also read aloud anonymous statements that he said were from current D.C. Circuit judges arguing that the court isn't busy enough to warrant filling its vacancies. Those statements came in response to a letter that Grassley said he sent to the court's judges asking for their take on the matter.
"The judges themselves confirmed everything I've been saying," Grassley said. "Who is in a better position than the judges to make an assessment about the court's workload and the need for additional judges?"
But Sen. Richard Blumenthal (D-Conn.) said Grassley's argument overlooks the fact that the D.C. Circuit, considered second only to the Supreme Court in terms of its importance, takes on particularly hefty and complex cases that require extra scrutiny. He also listed off the names of current and former judges on that court -- including Supreme Court Chief Justice John Roberts -- who have spoken publicly about the court's intense workload.
Plenty of judges who have served on the court "have commented for the record, not anonymously, their views as to the workload of the court," Blumenthal said, "all indicating very strongly and unequivocally that the workload of this court is certainly a tremendous challenge and growing, rather than diminishing."