THE BLOG

Five Things Republicans Don't Want You to Know About the D.C. Circuit

06/03/2013 06:33 pm ET | Updated Aug 03, 2013
  • Marge Baker Executive Vice President for Policy and Program, People For the American Way & People For the American Way Foundation

The Associated Press is reporting that tomorrow President Obama will nominate three experienced and highly regarded people -- Cornelia Pillard, Patricia Ann Millet and Robert Leon Wilkins -- to the influential Court of Appeals for the D.C. Circuit, a court with more than a quarter of its active judgeships sitting vacant. Senate Republicans are predictably leaping into inaction, promising to block all three nominees for reasons completely unrelated to their qualifications or backgrounds. They are even proposing a bill that would eliminate those three judgeships entirely to prevent President Obama from filling them. But their arguments rely on Americans not paying attention to the facts about the D.C. Circuit. Here are five things Republicans don't want you to know about the nation's second most influential court.

  1. The D.C. Circuit has a huge influence over federal law and regulation... and it's currently dominated by some of the most conservative federal judges in the country. Republican nominees on the D.C. Circuit have recently overturned clean air protections that would have prevented an estimated 34,000 premature deaths; invalidated President Obama's appointments to the National Labor Relations Board; found that requiring factually accurate warning labels on cigarette packages violates the free speech rights of tobacco companies; and, perhaps most absurdly, ruled that a law requiring employers to tell workers their legal rights violates the employers' First Amendment rights. Senate Republicans want to keep it this way.
  2. President Obama was the first president since Woodrow Wilson to serve a full term without putting a single judge on the D.C. Circuit. Senate Republicans were so intent on keeping President Obama from placing judges on the D.C. Circuit that they filibustered his first nominee to the court, Caitlin Halligan, for two and a half years before she withdrew her nomination. They finally allowed a vote on Obama's second nominee to the court, Sri Srinivasan, last month. Srinivasan was confirmed unanimously, but Republicans have indicated that their cooperation will end there. It would be highly unusual for President Obama to have only one nominee confirmed to the D.C. Circuit: Every president since Jimmy Carter has had at least three nominees confirmed to the court. Ronald Reagan had eight, four of whom are still serving as senior judges today.
  3. The argument that the D.C. Circuit doesn't need new judges is bogus. Republicans claim that there is no need to confirm judges to the ninth, 10th and 11th seats on the D.C. Circuit because the court's workload doesn't merit it. However, many of the same senators had no problem voting to confirm President George W. Bush's nominees to the very same seats -- when the court's workload was comparable or lower. What's more, caseload numbers don't tell the full story of the D.C. Circuit's workload. Because of the nature of the court, the cases it handles are often much more complex and time-consuming than those before other appeals courts.
  4. Senate Republicans habitually use judicial nominations to gum up the works of government . In 2005, the bipartisan "Gang of 14" agreed to a compromise under which the minority would only filibuster President Bush's judicial nominees under "extraordinary circumstances." Senate Republicans annihilated this deal once President Obama was in the White House, filibustering even nominees who they said they supported and later voted to confirm. Because of both public and silent Republican filibusters, President Obama's appeals court nominees have been forced to wait an average of 146 days between Judiciary Committee approval and a yes-or-no vote from the Senate. At this point in Bush's presidency, the average wait for confirmed appeals court nominees was just 54 days.
  5. Republicans are attacking President Obama for trying to do his job, while they refuse to do theirs. Not only are Senate Republicans vowing to block President Obama's nominees to the D.C. Circuit, they are trying to attack the president merely for nominating judges to existing appeals court vacancies -- as is his duty under the Constitution, performed by every one of his predecessors. Sen. Chuck Grassley and others have accused the president of "court-packing" -- a term that was invented to describe Franklin D. Roosevelt's attempts to expand the Supreme Court for political ends. The Wall Street Journal's editorial board accused the president of acting like a "king." The Family Research Council even accused the president of launching an "attack on the independence of the federal courts" and "trying to declare law by executive fiat" -- merely for nominating qualified, mainstream nominees to existing judicial vacancies. These absurd attacks expose the emptiness of conservative opposition to President Obama's D.C. Circuit nominees.