This morning, the NYT reported that the Obama Administration is preparing to make several more nominations to the U.S. Court of Appeals for the D.C. Circuit. After last week’s unanimous confirmation of Principal Deputy Solicitor General Sri Srinivasan, there are three remaining vacancies on the eleven-seat court. The NYT identified three D.C. lawyers under active consideration by the White House: law professor Cornelia “Nina” Pillard and attorneys David Frederick and Patricia Ann Millett. A later report by BLT adds a fourth name to the mix: U.S. District Court Judge Robert Wilkins.
The NYT story repeated the White House talking points that additional judges are needed on the D.C. Circuit lacks “balance” and has been “undermining the president’s hard-fought legislative and executive agenda,” noting a handful of high-profile cases in which the Administration was rebuffed by the D.C. Circuit. Yet the D.C. Circuit is as if not more ”balanced” today than it has been in years. The full-time active judges are now split 4-4. While most of the senior judges still hearing cases are Republicans, that was also true in 2006, when the among active judges was 7-3 favoring GOP-nominated judges. Yes, the D.C. Circuit has struck down some Obama Administration rules, but this is par for the course. Some doozies, like the Administration’s greenhouse gas rules, have also gotten through. Indeed, the Bush Administration EPA had a slightly harder time in the D.C. Circuit than has the Obama EPA, and despite its alleged anti-regualtory bias, environmentalist challenges have been more successful than those filed by industry. Nonetheless, the NYT credulously repeats Administration talking points that additional judges are needed on the court to “make it more conceivable that the president’s agenda would get a fair hearing.”