Don’t Let Democrats Pack the D.C. Circuit

by Senator John Cornyn

It is one of the most important battles raging in Washington, a fight that will have far-reaching consequences for everything from health care and the regulatory state to gun rights and the war on terrorism. Yet most Americans have heard nothing about it.

I’m talking about Democratic efforts to pack the U.S. Court of Appeals for the D.C. Circuit.

America has 13 different federal appellate courts, but the D.C. Circuit stands out as the most powerful, especially on regulatory and constitutional matters. No other appellate court wields so much influence over hot-button national issues.

The D.C. Circuit currently has eight active judges and six senior judges (who are semi-retired). Based on its caseload, the court does not need more judges at the present time. For example: Between 2005 and 2013, its total number of written decisions per active judge declined by 27 percent, and the number of appeals filed with the court fell by 18 percent. The D.C. Circuit has already taken four months off this year. Meanwhile, other federal appellate courts genuinely are overburdened and do need more judges.

And yet, instead of trying to fill judicial vacancies where the need is most urgent, President Obama and Senate Democrats are attempting to transform the D.C. Circuit into a rubber stamp for liberalism and big government.

Their motivation is simple enough: In recent years, the D.C. Circuit has repeatedly pushed back against executive overreach. In 2011, it struck down the Securities and Exchange Commission’s “proxy access” rule, declaring that the agency failed to conduct a proper cost-benefit analysis before adopting the regulation. Last year, the court vacated the Environmental Protection Agency’s Cross-State Air Pollution Rule, noting that it would “impose massive emissions reduction requirements” on certain states “without regard to the limits imposed by the statutory text.”

The D.C. Circuit has also rejected as unconstitutional a pair of appointments that President Obama made to the National Labor Relations Board in January 2012, ruling that the administration’s legal rationale for these appointments would “eviscerate the Constitution’s separation of powers.” More recently, on August 12, the court held that President Obama’s Nuclear Regulatory Commission was “simply flouting the law” by delaying a decision on whether to use Yucca Mountain as a nuclear-waste repository.”The president,” it said, ” may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

However, the D.C. Circuit has also ruled in favor of the Obama administration on many occasions. Just look at EPA: Since 2012, reports Jeremy Jacobs, the agency has won 60 percent of all D.C. Circuit cases involving “significant challenges” to its regulations, “a better performance than EPA had at the circuit during George W. Bush’s administration.” In particular, EPA has scored landmark victories on cases related to greenhouse-gas regulations, ethanol-blended gasoline, and mountaintop-removal coal mining.

Beyond energy and environmental issues, the D.C. Circuit upheld President Obama’s executive order regarding embryonic stem-cell research on two separate occasions, in April 2011 and August 2012. Additionally, the court upheld the Affordable Care Act (a.k.a. “Obamacare”) in November 2011, ruling that the individual health-insurance mandate was constitutional under the Commerce Clause.

In other words, despite the hyperbolic criticism leveled against it by left-wing activists, the D.C. Circuit remains an impartial judicial arbiter. I haven’t always agreed with its decisions, but I’ve always respected the integrity and professionalism of its members. As for partisanship, the court is currently split right down the middle: Four of its eight active members were appointed by a Republican president, and four were appointed by a Democratic president.

Unfortunately, top Democrats are now smearing the D.C. Circuit judges and vowing to do whatever it takes to shift the court in a more liberal direction. “They’ve done a lot of bad things,” Senator majority leader Harry Reid said in August, “so we’re focusing very intently on the D.C. Circuit. We need at least one more [judge]. There’s three vacancies, we need at least one more and that will switch the majority.”

Not only is Senator Reid attempting to pack the court with judicial liberals, he is threatening to use the so-called nuclear option unless Republicans cooperate. In simple terms: Democrats are prepared to violate Senate rules they have publicly supported in order to “flip” the D.C. Circuit and help the Obama administration impose its agenda. If these tactics succeed, the Senate will be weakened as an institution, and the nation’s “second-highest court” (to quote the president) will be transformed into a far more ideological judicial body.

Senator Chuck Grassley of Iowa has offered a reasonable compromise that would allow several of President Obama’s appellate nominees to be approved for courts that actually need judges. As Carrie Severino of the Judicial Crisis Network has observed, the D.C. Circuit “already has the lowest caseload in the nation, and, if anything, trends show that their workload is decreasing.” Indeed, one D.C. Circuit judge recently told Senator Grassley: “If any more judges were added now, there wouldn’t be enough work to go around.”

For all these reasons and more, I hope that members of both parties can reach a sensible agreement before Democrats attempt a reckless power grab.

Senator John Cornyn (R., Texas), the Republican whip, is a member of the Senate Judiciary Committee.