Given the shrill sounds rising from Washington these days, the news wasn’t easily heard:
After years of partisan obstruction and delay, the United States Senate confirmed a judge. To what’s widely regarded as our second-highest court. Unanimously. And last week, recognizing that the D.C. Circuit’s “judicial crisis” has yet to be cured, President Obama sent three more names down Pennsylvania Avenue—one for each of the court’s still-empty seats.
You’re wanting to convene a parade, I’m sure. Or a barbeque. Something bathed in red, white and blue. America works again! The Founders are beaming! The President’s done his job—and the Senate’s sure to follow!
I hate to be the one to tell you, but it’s not quite time for libations. Already, a minority in the Senate—led by the Senate Judiciary Committee’s ranking member, Chuck Grassley—is threatening to block up-or-down votes on the President’s D.C. Circuit nominees. And so begins another Washington standoff.
As Congress’s sub-cockroach approval ratings can attest, obstruction is rarely thought a democratic virtue. Which makes it the task of the obstructionist to fashion a pretext for inaction. When it comes to the D.C. Circuit, Sen. Grassley has gone so far as to offer a Pretext Act—S. 699. Under Grassley’s bill, the D.C. Circuit’s three vacant seats would be wheeled out of the building and onto moving trucks, one bound for the U.S. Court of Appeals for the Second Circuit; one for the Eleventh Circuit; and the third—for a burn pile, it seems. The supposed reason? According to Sen. Grassley, the D.C. Circuit runs well enough on eight of its 11 cylinders, making the President’s nominations to the court’s empty seats a rather damning attempt at “court packing.”
Yeah—it’s as hollow as it sounds.
First, “court packing”? As Norm Ornstein asked, laughing, “How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?” It can’t.
Sen. Grassley gets no further on the numbers. Only two months ago, the Judicial Conference of the United States—an administrative body headed by Chief Justice John Roberts, Jr.—recommended that the D.C. Circuit remain a court of 11 active judges. A J11, if you will. The recommendation wasn’t one Sen. Grassley could really quarrel with. In 2005, under a different administration, the Iowa Republican voted to confirm both a tenth and an eleventh judge to the court; at that time, the number of cases pending in the D.C. Circuit was pretty much the same as the number pending these days.
So, what does Mr. Grassley have to say in defense of his Pretext Act? He argues, ultimately, that some of our appellate courts have larger caseloads. Which just can’t be fair. This story ignores what Chief Justice Roberts has acknowledged: the extraordinary nature of the D.C. Circuit’s docket. In the words of Patricia Wald, the court’s former chief judge:
The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record—all of which culminates in lengthy, technically intricate legal opinions.
The D.C. Circuit has work to do—and so does the Senate. President Obama has named three nominees to the court’s three empty seats. The Senate must give each of them prompt consideration and an up-or-down vote. Once it does, we can convene that parade. And, hell—a barbeque, too.