Sen. Grassley's Misleading Effort to Block D.C. Circuit Court Nominations

May 21, 2013

by Jeremy Leaming

Sen. Chuck Grassley (R-Iowa) a champion of obstructing President Obama’s nominations to the federal bench and some to executive branch positions, has focused special attention on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is a significant court that hears high-profile national security concerns and cases regarding federal regulation, among other lofty matters. Patricia Wald, retired, served on the august Circuit court for 20 years, including five as its chief judge. She noted in a piece for The Washington Post, “Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.”

The eleven-member court has four vacancies and President Obama has yet to fill one of them, because of Senate obstructionism. Senate Republicans twice scuttled Obama’s nomination of Caitlin Halligan to fill one of the Court’s vacancies. Some pundits say too much focus is placed on increasing obstructionism and grope for other excuses for the federal bench’s high vacancy rate. (See JudicialNominations.org for more on the vacancies.) But those pundits are simply uniformed or disingenuous. Republicans, led by the ringleader of obstruction, Sen. Mitch McConnell (R-K.Y.) have stalled nominees to the Circuit courts and even some to the federal district courts. At The Dish, Andrew Sullivan has blasted the GOP for its rampant obstructionism, in reporting on a Party that has become increasingly hostile to governing.

The D.C. Circuit with its four Republican appointees and three Democratic appointees has eagerly invalidated regulations to protect the environment, which is good for corporations, bad for humans, and earlier this year issued an opinion re-writing the president’s recess appointment power. Several of the D.C. Circuit's judges are also on senior status, which means they have much more flexibility in what cases they participate, and a greater chance exists that a three-judge panel will more often be made up of three Republican appointees. It’s a Court that caters to corporate interests, which is likely one, if not the compelling reason, Grassley and other Republicans are striving to keep Obama from placing judges on the Court.

Grassley a part of the apparatus that blocked Halligan has not, so far, stood in the way of another nominee to the D.C. Circuit, Sri Srinivasan. But Grassley is pushing legislation that would cut the number of judges on the bench, signaling an effort to make sure the president has no more chances to shape the make-up of the D.C. Circuit. Grassley would move judgeships to the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Eleventh Circuit.

Part of Grassley’s push entails the canard that the D.C. Circuit has a light caseload. The Constitutional Accountability Center’s Judith E. Schaeffer in post for the group’s Text & History blog blasted Grassley’s effort as a “partisan sham.” She continued, adding that the Grassley effort amounted to “a ‘mass filibuster’ of President Obama’s future nominees to this critical circuit court. Senator Grassley’s bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

The right-wing editorial board of The Wall Street Journal has also joined Grassley’s cause. In a May 20 editorial, it apes Grassley’s talking points, saying the D.C. Circuit “doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system.”

Grassley and the WSJ editorialists, however, are on a mission to keep the D.C. Circuit tilted rightward, again primarily to protect corporate concerns. So advancing a fallacious argument about the Circuits’ caseloads is par for the course.  

In reality, the D.C. Circuit has a significant and rising caseload and one that is often far more complex than those of the other Circuits. Wald noted in her Post column that the D.C. Circuit’s vacancies have coincided with a growing caseload. “The number of pending cases per judge has grown from 119 in 2005 to 188 today,” she wrote. She also noted that unlike the other circuits, the D.C. Circuit “hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases require thousands of hours of preparation by the judges, often consuming days or argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of records – all of which culminates in lengthy, technically intricate legal opinions.”

In her blog post, Schaeffer notes that the U.S. Judicial Conference in an early April letter to Congress made no recommendations regarding the D.C. Circuit. The Judicial Conference did suggest adding judges to the U.S. Court of Appeals for the Ninth Circuit and to the U.S. Court of Appeals for the Sixth Circuit.

Grassley really doesn’t care about caseloads of the federal circuits or the large number of vacancies, more than 80, on the federal bench. Indeed as noted here Senate Republicans have waged an assault on the federal bench from the very start of the Obama administration. Grassley and his cohorts in obstruction are concerned, however, about ensuring one of the nation’s most powerful Circuit courts stays business friendly

But the U.S. Supreme Court generally continues to hear fewer and fewer cases every year and does anyone believe that when the next Supreme Court justice leaves the bench Grassley will introduce legislation calling for cutting some seats on the high court? I guess if such an opening were to occur during the Obama administration, maybe he would.