Obama packing the DC Circuit?

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.