Bench Memos

Putting the D.C. Circuit Vacancies in Context—Part 2

The White House’s reported sudden rush to fill three D.C. Circuit vacancies, even as it neglects judicial-emergency vacancies on overworked courts, needs also to be considered in the context of President Obama’s manifest lack of respect for, and lack of seriousness about, the D.C. Circuit:

1. During the first twenty months of his first presidential term, Obama failed to make any nominations to the two D.C. Circuit vacancies that existed throughout that period. Instead, he attempted to use a D.C. Circuit seat as a “political booby prize” by offering it to then-White House counsel Greg Craig as a means of easing Craig out of his job.

2. As I reported more than three years ago—way back in early 2010—the White House had settled on Sri Srinivasan for a D.C. Circuit nomination. But the Left then went after Srinivasan, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. So the White House abandoned its plans to nominate him. Given Srinivasan’s rapid and smooth path to confirmation in recent weeks, it’s fair to assume that he would have been confirmed three years ago if the White House hadn’t caved to pressure from the Left.

3. Obama ended up nominating New York lawyer Caitlin Halligan to the D.C. Circuit at the end of September 2010. Halligan’s nomination was blocked by a Republican filibuster in December 2011. Instead of promptly renominating Halligan in January 2012 or accepting his defeat and moving on, Obama waited an additional five months, until June 2012, to renominate her. The White House only withdrew her nomination two months ago, in the wake of a second unsuccessful vote on cloture.

4. In the fall of 2011, in an elevation of ideological and diversity considerations over ability, the White House was planning to nominate NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit. But Adegbile ended up joining the “significant number of President Obama’s potential judicial nominees” who failed even to pass the ABA judicial-evaluations committee’s screening.

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