White House, Bipartisan Group Urge Action on D.C. Appeals Court Nominee

April 2, 2013

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.”


Carney noted that a bipartisan group of Solicitor General officials, including Paul Clement, former Solicitor General for President George W. Bush and Walter Dellinger, Acting Solicitor General during the Clinton administration, is calling on the Judiciary Committee to support Srinivasan’s nomination. “As the undersigned can attest, Sri is a person of great integrity. Lawyers who have appeared on the other side of a case from him can also speak to this quality. He does not take shortcuts or cut corners,” the officials state in an April 1 letter to the Committee’s leaders. (The entire letter is available via Legal Times.)

Carney also reiterated the administration’s concerns about the obstruction of its judicial nominations. Since the beginning of the year, Carney noted that the Senate has confirmed nine judges, but those nine on average “waited 144 days for a floor vote, compared to President Bush’s nominees who waited an average of 34 days from a vote at this point in President Bush’s presidency.” He continued that slow-walking of judicial nominees “just underscores the seriousness of the situation; the uniqueness of the delays when you have a situation where so many of them are voted out of committee unanimously and then never given a floor vote.”

Senate Republicans, led by Minority Mitch McConnell (R-K.Y.), have waged a relentless assault on the federal bench that has left vacancies hovering near or above 80 much of Obama’s first term. Often few or very weak arguments are given for the obstruction. But that line of action not only harms the judiciary, it leaves the radically conservative party with vacancies to fill once it is back in the position to do so. For more on federal court vacancies, see JudicialNominations.org.