Republicans have responded recently to President Obama’s attempt to fill the vacant seats on the D.C. Circuit Court of Appeals with accusations of “court-packing,” a reference to President Franklin D. Roosevelt’s failed attempt to create a judiciary friendly to his New Deal agenda by adding judgeships to the Supreme Court.
Although court-packing and filling vacancies are actually very different things, the reference does get at the high stakes of the issue: Whether or not Obama and Democrats succeed in making new appointments to the court could have a significant impact on the president’s agenda.
Last week, the Senate approved Sri Srinivasan to the federal appeals court for the District of Columbia, the first nominee approved to the important court in seven years, after Republicans successfully filibustered two of President Obama’s previous nominees. But there are still three vacancies left on the court and, according to a New York Times report Monday, Obama plans to put forward three nominees simultaneously to fill those spots -- a move aimed at besting Republicans’ strategy of filibustering nominees one by one.
No matter what happens, the fight over these three nominees will be significant. The D.C. Circuit is considered the second-most important in the country after the Supreme Court because it receives an outsized number of cases involving the federal agencies, acting as a check on the regulatory power of the executive branch. If the nominees are approved, the D.C. Circuit will be more likely to uphold the administration’s agenda on important issues including financial, environmental and health care regulations.
Rather than allow Obama to fill the vacancies, Sen. Chuck Grassley, R-Iowa, the ranking member on the Senate Judiciary Committee, is pushing instead to shift the three spots from the D.C. Circuit to other circuit courts, arguing they are more in need of new judge due to higher caseloads.
“In general, it’s a good idea for the Congress periodically to assess in cooperation with the judicial conference in a nonpartisan way whether or not some courts can afford to give up judgeships because other courts need them more,” Russell Wheeler, a visiting fellow at the Brookings Institute and an expert on the federal court system, told the International Business Times Wednesday. “What I don’t think is a good idea is to do it simply to thwart a president’s appointees, and I think that’s pretty clearly what Grassley’s all about.”
Liberal activists see the conservative-leaning D.C. Circuit as dangerous to Obama’s agenda. “In case after case, whether it’s involving rules implementing Dodd-Frank, whether it’s involving cigarette warnings for young people, whether it’s allowing the Department of Labor to have additional people at the helm, EPA regulations, this particular court, led by judges appointed by Republican presidents who use litmus tests, are in case after case rendering decisions hostile to workers’ rights, consumer and environmental protections,” Nan Aron, a progressive activist and president of Alliance for Justice, said on MSNBC Wednesday.
With Srinivasan, the D.C. Circuit is made up of four Democratic appointees and four Republican appointees, but because five of the six senior judges, who are retired but regularly hear cases, were Republican appointees, giving the court its conservative bent. In the last few years, the court has struck down regulations made under the Dodd-Frank financial regulation law, air quality regulations from the Environmental Protection Agency and in a controversial decision, ruled that Obama’s recess appointments to the National Labor Relations Board were unconstitutional.
Wheeler predicts that Republicans will use Grassley’s argument that the D.C. Circuit doesn’t need more judges to filibuster the nominations. if they do, those filibusters could trigger an attempt from some Democratic senators to eliminate the filibuster for judicial nominations.
“The other side must be careful,” Sen. Chuck Schumer, D-N.Y., warned last week, according to the New York Times. “If they think they can win a debate over whether the Senate should change its rules, they might very well be mistaken.”