ACSBlog

by Jeremy Leaming

Some beltway pundits have long-pleaded with the Obama administration to “flood-the zone,” Washington-speak – in this instance – for making a lot more nominations all at once to the federal bench.

These pundits may have a bit to celebrate if President Obama puts forth three nominations to vacant seats on the 11-member U.S. Court of Appeals for the District of Columbia Circuit, as The New York Times reports may happen soon. That Court noted here often, is one of the more powerful among the appeals circuit courts, in part, because of the myriad and weighty constitutional concerns it rules on, many of which center on federal regulations. As The Times and many others have pointed out the D.C. Circuit has tilted rightward, thanks in part to the fact that an overwhelming majority of its senior judges are Republican-appointees. The Times noted the D.C. Circuit “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”

The Times reports that the potential nominees -- the White House would not comment on nominations not yet made – include three “experienced lawyers who would be unlikely to generate controversy individually.”

But Sen. Minority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) despite their protestations to the contrary have worked to stall or scuttle too many of the president’s judicial and executive branch nominations. The D.C. Circuit, at the moment is a business friendly outfit, recently issuing an opinion undermining the workers’ rights, is especially important to both leaders. Last month as Senate Judiciary Committee was conducting its hearing on Sri Srinivasan, the only Obama nominee to be confirmed the Court (finally), Grassley introduced a bill that would eliminate three judgeships on the D.C. Circuit and transfer them to the other circuit courts. In part Grassley argued that the D.C. Circuit’s caseload is light and other circuits need the judgeships more. Grassley’s effort has been blasted by the Constitutional Accountability Center’s Judith E. Schaeffer as 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 editorialists at The Wall Street Journal lauded Grassley’s effort saying President Obama, upset with the D.C. Circuit’s rulings, was aiming to “pack” the Court with judges to alter its ideological make-up.

Russell Wheeler, an expert on federal courts, disagreed in an ACSblog post, citing a 1996 speech by the late Chief Justice William Rehnquist in which he noted the right of presidents to place their imprints on the judiciary. Rehnquist, Wheeler wrote, said, “When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, and subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of federal judges.”