A partisan showdown is looming on what is known as the nation’s second-highest court, with President Barack Obama poised to nominate as many as three choices for the understaffed U.S. Court of Appeals in Washington in the face of a Republican proposal to distribute its vacancies to other parts of the country.
The District of Columbia Circuit has been at the center of years of wrangling between the White House and the Senate because its judges have so much influence over national and even international matters. Many cases, heard on the fifth floor of the federal courthouse across from the Capitol, relate to the balance of power in Washington and review of actions by federal agencies that affect health, safety and the environment for all Americans.
The White House has been frustrated by the successful blocking of one of Obama’s nominees to the circuit and by key decisions there recently against Obama’s agenda. The circuit overturned the administration’s regulation clamping down on power plant pollution that crosses state lines, rejected its attempt to require large graphic health warnings on cigarette packages and found that Obama exceeded his power in bypassing the Senate to make recess appointments.
“We have a majority in that court that is wreaking havoc with the country,” Senate Majority Leader Harry Reid argued last week on the Senate floor.
Senate Republican leader Mitch McConnell responded to Reid, “The real issue, I guess, is he disagrees with the rulings on the D.C. circuit.”
Although Obama also has had some victories in the D.C. circuit, which upheld his health care law and his administration’s rule on greenhouse gases, he was stymied in his attempts to add his own nominees to its bench until last week. Obama’s first offering, Caitlin Halligan, waited two and a half years before withdrawing her nomination in March with Republicans blocking a vote on her confirmation. Obama’s second nominee — Sri Srinivasan, who had bipartisan credentials after arguing appeals for both the George W. Bush and Obama administrations — won confirmation Thursday.
While making a concerted push for Srinivasan, the White House has been putting candidates through the vetting process to fill the other three vacancies on the circuit, which has a total of 11 judgeships set by Congress.
But Republicans are questioning whether the D.C. circuit is busy enough to justify filling more seats. Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, has introduced legislation to eliminate one seat, move one to the 11th circuit based in Atlanta and another to the 2nd Circuit based in New York. He said the workloads in those two circuits are much heavier than in Washington.
“Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch,” Grassley said in a recent committee meeting. He compared the packing of the court to the era of Franklin D. Roosevelt, who wanted to add justices to the Supreme Court to shift the balance of power after his New Deal legislation was ruled unconstitutional.
Obama senior adviser Dan Pfeiffer said it was Republicans who have failed to learn the lessons of Roosevelt with the bill that he called “a blatant attempt to shrink President Obama’s constitutional authority to fill this court.” Pfeiffer said Grassley voted repeatedly to confirm Bush’s nominations to the D.C. circuit and questioned what has changed since 2007, when Congress passed a law to move one seat off the D.C. circuit and set the number at 11.
“Make no mistake about it, this is court-packing in reverse and a cynical attempt to manipulate the third branch of government,” Pfeiffer’s statement said.
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