June 04, 2013

Why Obama Wants to Pack the DC Circuit

Statement of Committee for Justice president Curt Levey on President Obama’s announcement today of three nominations to the DC Circuit:

President Obama’s high-profile announcement today of three DC Circuit nominees – left-wing law professor Cornelia Pillard, U.S. District Court Judge Robert Wilkins and appellate attorney Patricia Ann Millett – is intended to provoke a fight with Senate Republicans rather than to address any need for additional judges on the Circuit.  A battle over these nominees is inevitable, both because the DC Circuit already has more judges than it needs and because nominees to this Circuit – the most powerful court in the nation after the Supreme Court – are subject to a higher level of scrutiny. 

Senate Democrats raised the already high bar to confirmation of DC Circuit nominees when they blocked two stellar Bush nominees to the Circuit, Miguel Estrada and Peter Keisler, and kept President Bush’s other four nominees to the Circuit waiting between one and three years.  Obama appeared to concede as much today when he said “Democrats weren’t completely blameless when I was in the Senate.” Left unsaid was the fact that there would not be three vacancies on the DC Circuit now if not for the Democrats’ obstruction of Estrada and Keisler.

After more than four years of relative disinterest in lower court nominees – Obama has not lobbied for any of them nor appeared alongside them before today – why is the President suddenly so concerned about the DC Circuit?  While we cannot read Obama’s mind, we can rule out any possibility that he is genuinely worried that the DC Circuit doesn’t have enough judges.  Despite there being two DC Circuit vacancies since he took office, Obama waited 20 months to make his first nomination to the Circuit and three and a half years to make his second.

That’s because Obama was well aware that the DC Circuit has more than enough judges.  The Circuit’s eight active judges and six senior judges are the equivalent of eleven full-time judges, which is precisely the capacity specified by the 2008 statute that reduced the court’s judges from 12 to 11 due to a low workload. Five years later, the DC Circuit’s workload remains the lowest of any of the 12 circuit courts.

President Obama’s newfound concern about DC Circuit vacancies is even harder to explain in light of the glacial pace of his judicial nominations generally, including to courts that badly need additional judges.  He has made nominations to fill only one-quarter of the 32 vacancies classified as “judicial emergencies” (none of the 32 are on the DC Circuit).  If he has any genuine concern about judicial vacancies, we suggest Obama support Sen. Grassley’s bill to shift two of the unfilled DC Circuit seats to the overworked Second and Eleventh Circuits.

We suspect the President’s sudden interest in the DC Circuit is motivated by several political factors. One, Obama is undoubtedly unhappy with several DC Circuit decisions – especially the one that found his recess appointments to the NLRB to be unconstitutional – and wants to shift the Circuit to the left by adding liberal judges to it.  Two, by provoking a filibuster showdown with Senate Republicans, Obama is providing Majority Leader Harry Reid with an excuse to use the nuclear option to permanently eliminate the minority’s right to filibuster nominees.  Three, President Obama may be making a big deal about DC Circuit nominees largely for show, hoping to blunt criticism from his allies over the glacial pace of judicial nominations.

Whatever Obama’s motivation, Senate Republicans should hold firm in the fight the President has provoked with today’s nominations.  Short of Supreme Court review, the best hope of blocking Obama’s attempts to bypass Congress with overreaching executive orders and regulations lies in the DC Circuit, which hears many of the applicable cases.  President Obama should not be allowed to tilt the Circuit, which currently has four Republican and four Democratic appointees, to the left.  

Any attempt by Obama and Reid to use this fight as an excuse for crippling the minority’s rights in the Senate must also be fiercely resisted.  If the minority’s right to filibuster nominees is lost now, it won’t be available if and when a center-right vacancy on the Supreme Court gives President Obama a chance to install a liberal majority and push the Court sharply to the left.