You know President Obama is ticked when he—the chief executive who delights in the company of Beyonce, Jay Z, and George Clooney—dips deep into late-1970s pop culture to lecture Senate Republicans on judicial nominations.
Obama pulled harmless newspaper columnist Tom Bradford (played with milquetoast blandness by Dick Van Patten) out from the American TV dustbin to wag a disapproving finger at Senate GOP resistance to filling three vacancies on the powerful U.S. Court of Appeals for the District of Columbia Circuit. Eight of the court’s 11 permanent seats are filled. Republicans have proposed legislation to reduce the number of permanent seats, citing a reduced caseload.
Obama, who knows something about judicial obstruction, denounced efforts to reduce his ability to reshape the D.C. Circuit in his own image, something every previous president did with gusto.
“The fact that Republican senators are now pushing a proposal to reduce the number of judges on this independent federal court also makes no sense,” Obama said in a Rose Garden ceremony Tuesday to nominate Patricia Ann Millett, Cornelia Pillard, and Robert Wilkins to the D.C. Circuit. “When a Republican was president, 11 judges on the D.C. Circuit Court made complete sense. Now that a Democrat is president, it apparently doesn’t. Eight is suddenly enough.”
Interestingly, most Eight Is Enough episodes dealt with challenges faced by a widowed and remarried father in raising eight independent-minded children. Whether populated with eight or 11, the D.C. Circuit presents presidents with some of the same problems. The court, second only to the Supreme Court in reach and clout, can frustrate or advance a president’s legislative agenda. Like the Supreme Court, appointments can shape a legacy long after the president has departed.
It therefore infuriated Democratic allies of Obama that in his first term he sent only one D.C. Circuit nominee to the Senate, Caitlin Halligan in 2010. Senate Republicans filibustered Halligan twice. The basis was Halligan’s role in bringing suit against gun manufacturers as solicitor general of New York. This allegedly confirmed Halligan’s status as a “judicial activist.” Halligan withdrew her nomination in March. Whatever the GOP’s stated reasons, the Halligan episode looked like payback for Democratic filibusters against Miguel Estrada, nominated by President George W. Bush in 2001 to the same D.C. Circuit Court. After protracted Senate debate and seven votes to break a filibuster, Estrada withdrew in 2003.
The Senate’s recent unanimous approval of Sri Srinivasan suggested a possible bipartisan breakthrough on federal court nominations. But Obama, mired in Internal Revenue Service muck and sick of questions raised about Attorney General Eric Holder, needs a good, clean political rumble with Republicans, and, as is their pattern, the GOP has incomprehensibly complied.
Republicans argue that now is not the time for Obama to send up three nominees to the D.C. Circuit Court, because the court’s caseload is running behind those of other, more overworked federal district courts. Sen. Chuck Grassley, R-Iowa, contends the D.C. court now considers only 108 appeals per judge—the lowest in the nation. He is pushing a bill—which has as much chance of seeing Democratic Senate action as a bill to repeal “Obamacare”—that would eliminate three judgeships from the D.C. Circuit Court and add one each to the 2nd Circuit and 11th Circuit Appeals Courts.
Picking a judicial nomination fight used to be rare. But in the past two decades, it has become a burdensome and often ugly bloodsport, with many nominees forced to wait years for confirmation or suffer the indignity of retreating from the partisan onslaught, their reputations sullied. Partisan crocodile tears run in hypocritical rivers, consoling no one and betraying the constitutional essence of advice and consent.
Caseloads matter, but every court-watcher knows the D.C. Circuit handles appeals of vast complexity and regulatory reach. Congress is within its jurisdiction, and most challenges to executive-branch actions come before this appeals bench. That’s why the court is a stepping-stone to the Supreme Court. Obamacare, immigration, Dodd-Frank, and new Clean Air Act regulations will all come before the D.C. Circuit soon.
Republican accusations that Obama is trying a “court-packing” maneuver on the D.C. Circuit also fall into this category. Grassley’s legislation would have more credibility if he scrutinized the D.C. Circuit caseload during the George W. Bush years, instead of voting to confirm his nominees (see Janice Rogers Brown and Thomas Griffith in 2005 and Brett Kavanaugh in 2006).
Obama cannot pack a court by filling vacancies. Republicans and Democrats can, as press secretary Jay Carney said Tuesday, court-pack in reverse by denying presidents their nominees via filibusters instead of up-or-down votes. But the federal bench has seen enough—actually, far too much—of that. Obama won and is entitled to appoint nominees to the bench. That he has taken five years to discover the importance of the D.C. Circuit is a peculiarity of his presidency that Republicans ought to quietly celebrate.
If they wish to oppose nominees Millett, Pillard, and Wilkins, Republicans ought to do it on the merits. If they don’t, Obama is clearly giving Senate Majority Leader Harry Reid ammunition to bring the fight over all judicial nominations to a head, risking a rule change that could dramatically limit filibusters on nominations, change the character of the Senate, and influence every future nomination.
Republicans know the D.C. Circuit’s current composition allows them a fighting chance to keep Obama’s agenda from winning judicial backing. Recent rulings have, more often than not, frustrated the White House and Reid—none more so than rejection of Obama’s recess appointments to the National Labor Relations Board.
On May 22, Reid declared the D.C. Circuit was “wreaking havoc with the country” and pointed to the NLRB decision as prima facie evidence of conservative judicial activism. “Yes, there is a crisis, and we need to do something about it.”
That something has been set in motion. And though Obama evoked a long-forgotten TV show with a calm, sympathetic dishrag of a father figure, neither he nor Reid is Dick Van Patten. They mean business, and Republicans need to come up with a better strategy than retribution via filibuster or selective court-redesign.
One option can be found in the Constitution. Article II, Section 2.
This article appears in the June 6, 2013, edition of NJ Daily as Vacancy Packing.