Bench Memos

Collegiality, Court-Packing, and the D.C. Circuit

The House Judiciary Committee held hearings yesterday on whether the D.C. Circuit Court of Appeals needs new judges, with testimony from my colleague Carrie Severino, along with Senator Chuck Grassley, C. Boyden Gray, and Nan Aron.

While the Left tries to make President Obama’s D.C. Circuit appointments be about, in Nan Aron’s words, “stresses on the D.C. Circuit,” “the importance of its legal mission,” and constitutional appointment powers, as Carrie argued yesterday, they’re actually about “facilitat[ing] the president’s aggressive political agenda.”

Prominent Democrats have been very transparent about this aggressive agenda. Senator Reid declared that D.C. Circuit judges who ruled against the administration are “wreaking havoc in the country,” and criticized President George W. Bush’s D.C. Circuit appointees as “terrible” and not “deserv[ing] to be on any court.” Senator Chuck Schumer who has requested the help of the “progressive community” during the judicial nominations fight, complained that the D.C. Circuit is “dominated by the hard right,” and criticized the D.C. Circuit for certain policy outcomes — not its legal reasoning — in areas such as environmental law, regulatory policy, and the NRLB. Now, they have made it clear that they will do whatever is necessary to, as Senator Reid put it, “switch the majority” on the D.C. Circuit, or as Senator Schumer has threatened, “fill up the D.C. Circuit, one way or the other.”

With Senators Schumer and Reid talking about filling up the D.C. Circuit as an antidote to “hard right” judges, who are unfit for the gavel and “wreaking havoc” on America, we should realize why the politicized nature of these nominations alone cautions the Senate to reject these nominees. As C. Boyden Gray testified today, it would greatly undercut collegiality on the D.C. Circuit, which is essential to the rule of law, and a properly functioning and respected court:

The President’s recent nomination spree risks politicizing an institution that is—and should be—above politics. The D.C. Circuit hears some of the most important and least glamorous cases in the federal judiciary. In addition to the ordinary civil and criminal appeals it hears from decisions of the district court, the D.C. Circuit more than any other court considers petitions for review of federal agency actions—administrative rules and orders that affect the lives and businesses of all Americans. To its great credit, the D.C. Circuit has, for the past two decades at least, fulfilled this important role thoughtfully, quietly, and without political rancor—in short, with collegiality, an institutional trait that manifests itself, D.C. Circuit Judge Harry Edwards has written, when “judges have a common interest, as members of the judiciary, in getting the law right, and . . . as a result . . . are willing to listen, persuade, and be persuaded, all in an atmosphere of civility and respect.” Thus, “collegiality mitigates judges’ ideological preferences and enables us to find common ground and reach better decisions. In other words, the more collegial the court, the more likely it is that the cases that come before it will be determined on their legal merits.” The collection of qualities that give rise to collegiality on an appellate court may be difficult to define, and its precise effects on decisionmaking may be hard to quantify, but judges themselves universally acknowledge collegiality to be an important ingredient in the judicial process.

The collegiality that the D.C. Circuit’s judges—appointed by presidents of both parties—have labored so hard to achieve would be threatened if the President succeeds in his effort to force three unneeded judges through the confirmation process. First, judges who sense they are appointed to prop up the President’s regulatory agenda, may be more likely to do so out of loyalty to the President who appointed them. In his early years on the court, Judge Edwards “witnessed occasions when ideology took over and effectively destroyed collegiality, because the confirmation process ‘promoted’ ideological commitment.” As proponents of the nominations have pointed out, it is no accident that Obama’s judicial nomination barrage followed his State of the Union promise that “if Congress won’t act” on climate change, “I will.” And whereas “a single new judge has no real standing or authority to undo the norms of collegiality,” three judges nominated contemporaneously with a single political agenda in mind may feel pressure to fulfill that agenda at the expense of the institution’s collegial character, as Judge Edwards has observed.”

Don’t expect this danger to the long-term functionality of the court to cause Senator Reid and the Obama administration to even blink an eye; you can expect them to go full-speed ahead on their court-packing plan. As I wrote last week, they’ll try to have this debate on what they think are more favorable grounds by inaccurately portraying Republicans as obstructionists (never mind that the D.C. Circuit doesn’t need more judges) in their “quest to turn this important court into a rubber stamp.”


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