President Obama is reported to be ready to do something very important: He is expected to make nominations for the three empty seats on the D.C. Circuit Court of Appeals.
This should be a routine story. Every president does exactly the same thing; when there are vacancies on the federal bench the president is required to nominate new judges, subject, of course, to the advice and consent of the Senate. It's in his job description (see Constitution; Article II, section 2).
Which is why you may be puzzled to hear Senate Republicans are screaming bloody murder. The president is trying to "pack the court," they cry, as if filling vacant judgeships is some kind of unprecedented power grab. They are outraged that the president has the audacity to send names forward for empty seats on the 11-member D.C. Circuit -- just as every other president has done since the Grover Cleveland administration. This would be laughable if the consequences weren't so serious.
Senator Chuck Grassley claims that the D.C. Circuit is so underworked it doesn't really need all 11 judges that the law says it does, so he insists that now would be a convenient time to stop filling the seats. The fact that 15 of the last 19 D.C. Circuit Court judges were appointed by Republicans is, of course, irrelevant; as is the fact that he voted to confirm an 11th judge for the same court when George W. Bush was president. To hear him tell it, the three new judges would be sitting around waiting for the occasional case to wend its way to their courtroom, a Lost Panel wandering the hallways looking for something to do.
Faced with this disturbing prospect, the Republicans are engaging in their latest obstruction tactic: the preemptive group filibuster, whereby nominees are blocked en masse even before anyone knows who they are. It's creative, I'll give them that.
These are the facts: The D.C. Circuit handles some of the most complex, lengthy, politically sensitive litigation in the federal courts, resulting in long trials and long, technical opinions. The court's workload has increased significantly since the last time a nominee was confirmed in 2005, which happened to be during the Bush Administration when Sen. Grassley apparently forgot to object to such a wasteful move. Last year, 1,200 cases were filed in the court (which until last week only had seven full-time judges), and from 2005 through this year, the per-judge workload jumped 50 percent.
There is a reason this high-powered court is considered a farm team for the Supreme Court. Four of the nine current justices served there. This, of course, is one reason why the Republicans want to limit President Obama's ability to place legal stars there; they want to keep the opposing team at less than full strength.
But the other reason Republicans are pretending to care about the circuit's case load relates to the kind of cases this court hears.
The D.C. Circuit is the federal appeals court with that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers' rights, banking regulations, and other vital issues. It digs deeply into central disputes over how the government functions, and is a central battleground in the current fight over the nature and limits of executive power. This is the court that Republicans hope will do what they currently can't through legislative action -- dismantle the federal government and weaken President Obama.
And right now, the plan is working. Just recently, hyper-conservative panels ignored long-standing precedents and congressional intent, and ruled unconstitutional the president's recess appointments to the National Labor Relations Board, stopped life-saving EPA clean-air rules, and dismantled important SEC regulations.
For good reason, this is where Republican presidents stash their most fervent ideological warriors, such as Janice Rogers Brown, Brett Kavanaugh, and David Sentelle.
But with the recent confirmation of Sri Srinivasan, and with eight of the 11 seats now filled, hasn't ideological balance been achieved with four Democrats and four Republicans?
No. Not even close. The reason for this has to do with how this court hears its cases. The D.C. Circuit, as an appeals court, initially hears cases on three-judge panels. But the court draws its judges not just from the eight who are sitting on the court (or the 11 who should be), but also from a pool of six semi-retired senior judges, five of whom are Republican nominees. As Moshe Marvit has pointed out in an article in Dissent magazine, "almost 70 percent of the three-judge panels included at least one senior judge ... [and] almost 80 percent of the panels in 2013 were composed of exclusively or a majority of Republicans." Senate Republicans' deceptive claim of balance on this court is a bit like analyzing a baseball team's pitching staff, but ignoring the bullpen, members of which appear in almost every game.
One has to hand it to the Republicans; they are the masters of creative obstructionism. No one in American history has come up with so many clever ways to use Senate procedures as partisan bludgeons. No argument is too ludicrous. No procedural gimmick too outrageous. No deception too preposterous. Don't want the Democratic president to make the judicial appointments the Constitution entitles him to? Just eliminate the seats! Don't want a legal star like Caitlin Halligan to sit on the bench? Don't let her get a vote! Don't want big-business interests to lose in court? Make sure the conservative firewall in the D.C. Circuit is never challenged!
The fight over the D.C. Circuit is of vital importance to justice in America. But it's also emblematic of the almost complete breakdown of the Senate's institutional integrity.
When the president submits these three critical nominations he will be effectively issuing a challenge to the Senate to make a choice. Either accept the tyranny of an embittered, destructive, hyper-partisan minority or change the rules to allow the president and the Senate to do the jobs the Constitution demands of them. For those who care about our democracy and the courts, the choice is easy. The time for drastic change is rapidly approaching.
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