ACSBlog

by Jeremy Leaming

The inability of President Obama to fill vacant seats on one of the nation’s most powerful courts, the U.S. Court of Appeals for the D.C. Circuit, has belatedly caught the attention of a few beltway reporters. And unsurprisingly several of those longtime reporters have framed the story in a typical, albeit lazy, fashion – it’s both the Republicans and the administration’s fault. It’s a story they are trained to write. Place blame on both parties, question whether there’s really anything new here and then walk away.

So one must look to writers like Andrew Sullivan, Thomas Mann and Norman Ornstein or the Constitutional Accountability Center’s Judith Schaeffer for an accurate picture of the debacle that is the judicial nominations process.

The current fight over the judiciary has very little to do with the pace by which the administration has nominated potential judges. It has everything to do with a Republican Party that has grown increasingly radical. It’s a Party that is oblivious to the last two presidential elections, won fairly handily by a Democrat, and beholden to interests that need a federal bench that tilts heavily rightward – to protect corporate interests. So Republican senators, led by Minority Leader Mitch McConnell (R-Ky), have not taken their constitutional duty to provide advice and consent seriously and abused the filibuster to greatly slow the pace of judicial confirmations. This has led to vacancies across the country hovering above 80 for far too long.

As Sullivan wrote in March, President Obama is “not equally at fault here. This should be a steady, reasonable process – especially for utterly uncontroversial nominees. The American system requires some give-and-take, some acknowledgment that when you lose an election, you cooperate with the winner and take some responsibility for important institutions, like the federal courts. And yet this core conservative instinct to preserve the constitutional order and process has disappeared in the fanaticism of the current GOP. They are behaving like moody teenagers with grudges.”

The Republican obstructionists’ actions have likely had the most adverse effect on the D.C. Circuit, where they recently filibustered one of Obama’s selections for the D.C. Circuit, which hears some of the most important constitutional matters of any of the federal appeals circuits. It hears, for instance, challenges to new regulations aimed at enforcing the Clean Air and Clean Water federal laws. It is also a Court that tilts rightward and has shown great hostility to regulations aimed at protecting our environment – good for corporate interests, harmful to the health of many Americans. 

by Jeremy Leaming

Senate Republicans bent on obstructing the Obama administration’s efforts to fill vacancies on the federal bench may be feeling a bit of pressure to back off their political agenda for the sake of one of the nation’s most powerful appeals courts.

Last month Republicans filibustered the president’s nomination of Caitlin Halligan to fill one of the four vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit. The president had tried numerous times to place Halligan, the general counsel for the Manhattan district attorney’s office, on the Court, but Senate Republicans refused to allow an up-or-down vote citing flimsy claims that she is a left-wing ideologue unfit to serve. Not long after the latest filibuster, Halligan withdrew her nomination. As NPR’s Carrie Johnson reports the appeals court, which hears of range of weighty constitutional matters, has more vacancies than any other appeals court circuit. (ACS President Caroline Fredrickson in an interview with NPR noted the partisan leaning of the D.C. appeals court and its importance in handling challenges to federal regulations. “The clean air that we breathe, we hope to breathe, the clean water that we’d like to drink [and] all the EPA regulations around climate change are subject to this court’s review. And this court has shown itself extraordinarily hostile to efforts to protect people from environmental dangers.”)

The Senate Judiciary Committee is scheduled to conduct an April 10 hearing to consider another Obama nominee to the D.C. appeals court circuit, Sri Srinivasan, the principal deputy solicitor general. Srinivasan was nominated to the D.C. Circuit nearly a year ago, but like Halligan, his nomination has faced Republican opposition. Srinivasan, born in India and raised in the U.S., has not been attacked as an ideologue for a seat on the federal bench, instead Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Committee’s Ranking Member, has demanded information from the Department of Justice to determine whether Srinivasan was involved in the settlement of case involving city officials in St. Paul, Minn. (Grassley has suggested that city officials agreed to settle a case that could have resulted in a ruling weakening an enforcement provision of the Fair Housing Act in return for the DOJ’s agreement not to pursue and unrelated case. As The Blog of Legal Times reported earlier this year that Grassley has not suggested that Srinivasan “did anything inappropriate or improper,” but he wants to see more documentation to determine what, if any, role Srinivasan played.) If confirmed to the seat, Srinivasan would be the first South Asian to sit on the appeals court bench.

Yesterday, White House Press Secretary Jay Carney urged senators to move on the nomination. He called the Principal Deputy Solicitor General a “highly respected appellate advocate who as has spent a distinguished career litigating before the U.S. Supreme Court and the U.S. Court of Appeals, both in private practice and on behalf of the United States for both Democratic and Republican administrations.”