Republican Senators Work to Maintain D.C. Circuit’s Conservative Tilt

April 11, 2013

by Jeremy Leaming

Sri Srinivasan, President Obama’s second nominee to a vacant seat the U.S. Court of Appeals for the D.C. Circuit, sailed through yesterday’s Senate Judiciary Committee hearing largely because he did a masterful job of detailing his career, which offers few hints of an ideological leaning.

Yesterday, Adam Serwer, for Mother Jones, noted that very little is known about Srinivasan, other than he could be, if placed on the D.C. Circuit, a potential pick for the U.S. Supreme Court. If Srinivasan is confirmed, he will be the first South Asian American to serve on the D.C. Circuit. Serwer also touched upon aspects of Srinivasan’s legal career that might trouble progressives who believe the federal bench is in need of more progressive judges, instead of ones who cater to corporate interests.

Srinivasan said very little, if anything, to provide Republicans any cause to further delay his route to the D.C. Circuit. (Srinivasan’s hearing before the Committee came more than 300 days after the president nominated him.) He promised a fealty to precedent. And Republicans, such as U.S. Sen. Orrin Hatch (R-Utah), who helped scuttle Caitlin Halligan’s nomination to the D.C. Circuit, announced he would support the nomination.

Republicans like Sen. Chuck Grassley (R-Iowa), however, are bent on rebranding the D.C. Circuit as a court with too many judges and a light caseload. At the start of the hearing Grassley, the Committee’s Ranking Member, announced the introduction of bill to cut the number of active judges on the D.C. Circuit to 8 from 11. Grassley’s bill, co-sponsored by Republican senators Hatch, Jeff Sessions (Ala.), Lindsey Graham (S.C.), John Cornyn (Texas), Mike Lee (Utah), Jeff Flake (Ariz.) and Ted Cruz (Texas), claims, “It is no secret that the D.C. Circuit is the least-busy, least-worked appellate court in the nation.”

It appears Senate Republicans are preparing to give Obama one chance to put a judge on the D.C. Circuit and no more, leaving the D.C. Circuit likely tilting rightward, though at the moment it’s impossible to know exactly what if any ideology Srinivasan carries. Moreover, a confirmation is certainly not assured in this climate.

The Grassley measure to cut judges from the D.C. Circuit is also likely to face difficulty in the Senate, in part, because his claims on the court’s workload are wobbly.

Patricia M. Wald served on the D.C. Circuit for 20 years, five of them as its chief judge. She knows substantially more about that court than Grassley and his cohorts. Unlike the other circuit courts, the D.C. Circuit “hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary American lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more,” Wald wrote in a piece for The Washington Post.

Wald continued, “The nature of the D.C. Circuit’s caseload is what sets it apart from other courts. The U.S. Judicial Conference reviews this caseload periodically and makes recommendations to Congress about the court’s structure. In 2009, the conference recommended, based on its review, that the circuit’s 12th judgeship be eliminated. This apolitical process is the proper way to determine the circuit’s needs, rather than in the more highly charged context of individual confirmations.”  

Grassley’s attempt to shrink the D.C. Circuit, regardless of his rhetoric about its caseload, is circumventing the U.S. Judicial Conference that Wald references. He knows the measure won’t make it out of the Senate, that’s not its purpose. He’s building an argument for refusing to consider anymore of the president’s nominations to fill the other vacancies on the D.C. Circuit.

[image via Gage Skidmore]