Obama packing the DC Circuit?

posted at 12:01 pm on November 1, 2013 by Ed Morrissey

The DC appellate court may be one of the few areas of the federal bench not demanding more judges, according to a column in The Hill by David Rivkin and Andrew Grossman.  Already, the panel includes eight full-time judges split evenly between Democratic and Republican appointments, and six senior part-time jurists to take up more slack.  None of its openings are considered to be among the “judicial emergencies” facing the federal courts, most of which Obama has ignored.

So why has Obama suddenly made three new appointments to the DC circuit?  It’s the most significant in terms of federal regulatory efforts, Rivkin and Grossman point out, and therefore the most effective way of sealing his legacy:

The president is right to fear that his agencies may face tough going in the D.C. Circuit during his second term. Despite a number of high-profile court losses for failure to follow the law, President Obama declared after his reelection that he intends to act even more aggressively. He said that he is “not going to…wait for Congress” to carry out his agenda. “Wherever we have an opportunity and I have the executive authority to go ahead and get some things done, we’re just going to go ahead and do ‘em.” He has followed through on that promise, pushing the EPA to effectively ban new coal-fired power plants and to issue standards for existing plants that are likely to be among the most expensive regulations ever.  EPA is also contemplating new rules targeting natural gas.

Thus, the president’s rush to place three liberal stalwarts on the court. Today, the D.C. Circuit enjoys a reputation for careful legal reasoning and attention to detail. It is sensitive to the tough policy choices faced by public officials, without unduly deferring to their judgments on issues of law. For those very reasons, it poses a real threat to the president’s plans to skirt the normal lawmaking process—that is, working with Congress—in favor of unilateral action.

It’s easier to win in court, of course, when you get to pick the judges.  A second reason for the rush is to prevent the Senate from careful review of his nominees’ records.

This, in particular, should give Senators pause, because it stands in the way of carrying out their constitutional duty to provide “advice and consent” on judicial nominations. Given the stakes, a full airing of the nominees’ records is warranted, followed by careful deliberation by the Senate.

The White House may be working on that, too.  Roll Call reports that VP Joe Biden, whose office includes the responsibility to preside over the Senate, publicly supported more reform of the filibuster process after Republicans blocked two Obama appointees:

Just minutes after the swearing-in of New Jersey Democrat Cory Booker, the Senate dove headfirst back into a standoff over executive and judicial branch nominations.

“I think it’s worth considering it,” Vice President Joseph R. Biden Jr., said of changing Senate rules on nominees after Republicans filibustered two nominees.

Republicans blocked President Barack Obama’s pick of Rep. Melvin Watt, D-N.C., to become the top housing finance regulator, and Patricia Ann Millett’s nomination to fill one of three vacant seats on the District of Columbia Circuit Court of Appeals. Watt was blocked on a 56-42 vote for cloture, while Millett failed on a 55-38 vote. Sixty votes are needed to avoid a filibuster. Senate Majority Leader Harry Reid voted “no” to preserve his right to reconsider the vote. …

At the Capitol for Booker’s swearing-in, Biden sounded open to backing a rules change.

“I think it’s time for some common sense on confirmation. Mel Watt is absolutely, totally thoroughly qualified. It’s a gigantic disappointment,” Biden told reporters.

Well, maybe not as much of a disappointment as an opportunity. The question will be whether Senate Democrats are willing to bargain away a tool they will very much need if returned to the minority just to get Obama’s DC circuit judicial picks shoved past Republican opposition next year.  The more that the ObamaCare rollout proves disastrous to Democrats, the less likely they may be to take that leap. That doesn’t mean that the nominations won’t bear tough scrutiny, though. Republicans should also ask why the administration isn’t addressing the other judicial emergencies on the federal bench first, and ask it loudly.

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Ed must be listening to msdnc…they are outraged that gop thinks obama is packing the court…

cmsinaz on November 1, 2013 at 12:06 PM

Seems irrelevant given that he’s got Benedict Arnold in his pocket for the next 40 years …

ShainS on November 1, 2013 at 12:11 PM

it costs $1M per judge per year — either Sessions and/or Grassley said that on the floor of Senate yesterday.

CoffeeLover on November 1, 2013 at 12:11 PM

“Brownie, you’re doing a heck of a job” — GWB, presciently predicting obama’s legacy

Schadenfreude on November 1, 2013 at 12:11 PM

Earlier this year Senate Democrats, the WH, and Senate Republicans reached a ‘deal’ regarding the use of the filibuster and the nominations of Barack Obama.

In this deal, the President ‘agreed’ to withdraw the nominations of several hard left ex-union officials intended for the NLRB (who were actually appointed in the disputed ‘recess appointments’) in exchange for the Senate Republicans not filibustering hard left apparatchiks like the former AG Holder right hand in the DoJ responsible for massive politicization of the Civil Rights Division, Thomas Perez, who was confirmed to be the Secretary of Labor.

Not long after this deal, and largely unreported by the press, the President reneged on the deal by re-nominating some of those who were withdrawn as part of the deal.

Once again, the President proved that he can’t be trusted in any deal, and the Senate Democrats, unsurprisingly, gave him a full pass on his breaking of the deal.

I hope the Senate GOP hangs tough on these appointments – the only reason they are being done is to stack the DC Court and further cement a hard left bias in the national judiciary. I also hope that they not only remember, but toss the fact that the President reneged on the previous deal right back at the WH and the pederast who is the Senate Majority Leader.

Athos on November 1, 2013 at 12:13 PM

To me this was one of the biggest issues at stake in the 2012 election. Everyone focuses on the Supreme Court but lower courts are extremely important as well – many of their decisions never get a Supreme review.

I don’t think Obama gives a rat’s patootie about what happens in the future regarding the filibuster and the balance or power in the Senate. If he can pack courts now with big government progressives, that will solidify for years to come the vast overreach of the Fed government into every aspect of our economy and society, including our personal lives.

Marcola on November 1, 2013 at 12:13 PM

10 years ago, according to the Democrats, this ability – to filibuster nominees – was crucial to the health of the Republic. They wanted to remove it for everything else, just not this.

Jeff Weimer on November 1, 2013 at 12:22 PM

Yup, he is…and it was only a matter of time before he started using the FCC to go after conservative media.


Listen to the first few minutes for context.

jawkneemusic on November 1, 2013 at 12:27 PM

Why does the fascist need judges at all, the dog eater breaks the law now and does as he pleases, no one raises a finger over it.

Bishop on November 1, 2013 at 12:40 PM

“If you don’t control your mind, someone else will.” — Bill Coles

Schadenfreude on November 1, 2013 at 12:44 PM

I have 2 words, when talking about judicial filibusters, Laurence Tribe. He came up with the plan to filibuster Bush’s judicial nominations, maintaining liberal majorities in areas deemed important.

I have 2 more words, when talking about judicial filibusters, Miguel Estrada. The Democrats did not want the Republicans to have a Hispanic justice too close to the SUpreme COurt. He was never allowed a confirmation hearing, NEVER.

Up until recently, Republicans did little filibustering on judicial nominations, believing the President won the election and had a right to appoint judges. 2 things have changed, first the Democrats don’t play by those rules and secondly, there’s some doubt about who won the election, at least in some minds.

If I were the Republicans, I would shut down the Senate until there were serious changes. Obamacare needs a lot of work, shut it down until it’s done. The budget needs some work, shut it down until it’s done. The lying Democrats need to be held to account for all they did, IRS, NSA, FEC, DOJ, Fast and FUrious, Benghazi, all of those things Obama refuses to give information about, shut the place down until there’s accountability.

Hey, McCain, are you listening?????

bflat879 on November 1, 2013 at 1:01 PM

Man, I gotta stop reading this stuff. I’m getting some pretty scary evil thoughts.

Cleombrotus on November 1, 2013 at 1:29 PM

If Republicans were smart, and they aren’t, they’d block EVERY nominee for the rest of King Barack’s term of office.

GarandFan on November 1, 2013 at 2:10 PM

The Liar in Chief

Schadenfreude on November 1, 2013 at 2:29 PM

Man, I gotta stop reading this stuff. I’m getting some pretty scary evil thoughts.

Cleombrotus on November 1, 2013 at 1:29 PM

…what I was thinking…you said!

KOOLAID2 on November 1, 2013 at 8:33 PM