Politics & Policy

Court Packing by Another Name

Next to the initial response to Benghazi, the DOJ’s journalist eavesdropping, and conservative targeting at the IRS, add the existence of the Circuit Court of Appeals for the District of Columbia to the list of things about the federal government of which President Obama has, apparently, only recently been made aware.

After years of treating the court (usually considered the second-most-important judicial body in the republic) with a casual indifference, the administration suddenly announced three nominees to it on Monday — and is using the bully pulpit to up pressure on the Senate to approve them quickly. In aid of that effort, Majority Leader Harry Reid has renewed his threats to change that body’s longstanding rules.

The president’s newfound interest in the D.C. circuit is puzzling, considering he waited nearly two years after taking office to make any nomination to the court whatever. Or that he delayed the nomination of federal solicitor Sri Srinivasan, who recently skated through the confirmation process, by three years over grumbles from his liberal base. Or that another nominee, NAACP counsel Debo P. Adegbile, failed even to make it past an initial screening by the American Bar Association. Or that he let months pass before acting after one of the few picks that did get to the Senate, Caitlin Halligan, failed to win confirmation.

And the urgency Mr. Obama now says is required to fill these vacancies is belied at turns by the facts (the most recent vacancy is barely three months old) and his own past behavior (the oldest vacancy is so old that Senator Obama availed himself of the opportunity to block President Bush’s nominee to fill it). The administrators of the federal courts, headed by custom and law by Chief Justice Roberts, identify 33 outstanding judicial “emergencies” — defined as longstanding vacancies in district or circuit courts with large volumes of filings. The Obama administration has made nominations in just eight of these cases. The D.C. circuit does not appear on the list. Indeed, eight of the circuit’s eleven authorized full-time judgeships are occupied, and there are six sitting “senior” judges who work lighter caseloads — meaning the circuit is operating at or above capacity. So there can be no credible argument about the relative urgency of filling its vacancies.

Nor, as some allies and sympathetic pundits have suggested, does the need to “balance” the D.C. circuit require hasty confirmation of the president’s nominees. Despite the administration’s talking points, dutifully aped without interrogation by newspapers of record, the D.C. circuit is as “balanced” as ever in recent memory, with a 4–4 split between full-time judges appointed by Republicans and those appointed by Democrats.

So what is motivating the White House? Senator Charles Grassley, ranking Republican on the Senate Judiciary Committee, has drawn criticism for suggesting the president’s late nominations are an effort to “pack the court” to advance his policy agenda. Both sides have made overwrought comparisons to Franklin Roosevelt’s ill-bred scheme in the judicial fights of the last decade, but in this case Grassley has a point. FDR sought to subvert the traditions of the Court to ensure judicial acquiescence to the New Deal. President Obama, with an assist from Harry Reid, appears to be willing to subvert the traditions of the Senate to ensure judicial cover for his ongoing campaign to govern the country by executive order and administrative regulation. As Douglas Kendall, leftist legal advocate and president of the opaquely named “Constitutional Accountability Center,” put it: “With legislative priorities gridlocked in Congress, the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. circuit.”

The good news is there is plenty of room for the Senate to honorably discharge its constitutional duty to advise and consent on judicial nominees, while at the same time cooling the president’s ambitions. Indeed, compared with the treatment President Bush’s D.C.-circuit nominees enjoyed, the senators serving today have thus far behaved like perfect ladies and gentlemen. Republicans have filibustered just one of Obama’s nominees, and the last was confirmed just six weeks after his hearing. By contrast, Bush’s first pick, Miguel Estrada, was filibustered into oblivion. Another pick, Peter Keisler, was left to rot in committee for two and a half years before his nomination died. The four picks that Bush managed to see through took an average of 712 days between nomination and confirmation.

There is thus both ample reason and ample precedent for the greatest deliberative body to take its time in considering the president’s nominees. 

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