Sen. Grassley’s ‘Court Fracking’ Scheme

April 11, 2013

by John Schachter

If “fracking” is one of the buzzwords in the energy policy world these days then “court fracking” might become a new legal catchphrase.

Court fracking: (noun) the insertion of blatant politics into the judicial system to extract seats on the nation’s second most important court (i.e., the D.C. Circuit) eliminating one and dispersing others to dilute the potential impact of progressive jurists.

Unlike President Franklin Roosevelt’s ill-fated court-packing scheme of 1937, this fracking plan comes from Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa). During yesterday’s hearing on the nomination of Sri Srinivasan to the Court of Appeals for the D.C. Circuit, Sen. Grassley announced that he was introducing legislation to reduce the number of seats on the D.C. Circuit – often called the nation’s second most important court – from 11 to eight. Two of the seats would be moved to other circuit courts while one would be eliminated completely.

Today just seven of the 11 seats are occupied, although President Obama has now nominated two people for seats – the first of whom Republicans successfully filibustered over the course of three years! Caitlin Halligan in 2010, 2011 and again just last month saw her path to the court blocked by Republicans who apparently feared the presence of more progressive brilliant thinkers on a court currently composed of four Republican appointees and three Democratic ones. And, for good measure, Republicans also blocked a vote on Goodwin Liu in 2010 and 2011 for a seat on the U.S. Court of Appeals for the Ninth Circuit.

Few objective court watchers could challenge Halligan or Liu on serious substantive grounds. Ideology is another matter. While Republican critics portrayed Liu as a rogue activist, his year and a half on the California Supreme Court since his failed federal nomination reveal him to be a brilliant, well-respected and impartial jurist. Halligan had strong support from some the nations’ leading legal minds – including former officials from the Reagan and George W. Bush administrations – yet Republicans characterized her as a virulent anti-gun activist rather than the esteemed legal thinker she has proven to be.

The problem is that Republicans in the Senate won’t even let their colleagues vote on these eminently qualified nominees, whether for fear of their rise in judicial circles, their potential for future nominations to the Supreme Court, the hesitancy to have more diversity on the bench or some other partisan reason.

Now Grassley is peddling the myth that the court’s workload doesn’t justify the larger number of seats. It’s amazing how deeply Grassley will frack to dig up an excuse. Of course, Grassley had no hesitation supporting and voting for all of President Bush’s nominees to that court. And Grassley conveniently ignores the fact that the D.C. Circuit’s cases are often far more complex than the other circuits, so raw numbers of cases are quite misleading. Of course, neither Grassley nor the Republicans have a monopoly on hypocrisy; Democrats held up Bush nominees, sometimes unfairly. But Grassley’s Republicans have raised judicial obstruction to an art form under Obama.

It’s time to quit playing politics with the courts, demonstrate a willingness to serve the country’s needs, and give these important judicial nominees the up-or-down votes they deserve. The message to Grassley and his colleagues needs to be clear: stop your fracking nonsense.