- The Washington Times - Tuesday, June 4, 2013

A combative President Obama declared open warfare Tuesday on Senate Republicans over judicial nominations, naming three candidates to the influential D.C. Circuit Court of Appeals and blasting GOP lawmakers for delaying and blocking previous nominees.

The new nominations come at a time when the system envisioned by the founders is being tested from all sides.

Federal courts have moved to curtail Mr. Obama’s recess appointment powers, even as Senate Republicans flex their filibuster powers and Democrats consider using the so-called nuclear option to change the rules and end the GOP’s ability to filibuster nominees altogether.

After weeks of growing pressure, the president moved Tuesday to force the issue, daring Republicans to block three people with long and distinguished legal careers.

“This is not about principled opposition; this is about political obstruction,” Mr. Obama said. “What’s happening now is unprecedented. For the good of the American people, it has to stop.”

Nominations have grown increasingly contentious, with Democrats last decade launching the first partisan filibusters of appellate court nominees, and Republicans using the same tactic against two of Mr. Obama’s picks — including one for the D.C. Circuit panel.

Mr. Obama said his judicial candidates have waited on average three times longer for a confirmation vote than those of Republican President George W. Bush.

But a report last month by the nonpartisan Congressional Research Service showed a more complex picture: Mr. Bush’s circuit court nominees who were confirmed during his first term waited an average of 277 days, while Mr. Obama’s nominees averaged 240 days. But Mr. Bush’s district court nominees waited an average of 156 days from nomination to confirmation, while Mr. Obama’s waited 221 days.

Most recently, the Senate confirmed Sri Srinivasan, the administration’s principal deputy solicitor general, to a seat on the D.C. Circuit, giving the court four Democratic appointees and four Republican appointees.

Mr. Obama’s three nominees would give the court seven Democratic appointees and four Republicans.

The D.C. Circuit court has six “senior” judges, five of whom are Republican appointees, and the court has rejected some of the president’s agenda.

One panel last year struck down a move by the Environmental Protection Agency to regulate air pollution across state lines. Another panel ruled in January that Mr. Obama exceeded his powers when he made recess appointments to the National Labor Relations Board.

The Supreme Court is slated to meet later this month to decide whether to hear the administration’s appeal of the NLRB case.

The Senate had been meeting every three days in pro forma sessions specifically to deny Mr. Obama the ability to use his recess powers, but the president argued that since the entire Senate wasn’t in town, it was “unavailable” to do business, which was the same as a recess.

If the courts were to curtail Mr. Obama’s recess powers, that could give the Senate’s minority party even more leverage in nomination fights. Facing that prospect, Democrats, who control the chamber, have started talking once again about changing the rules to eliminate filibusters of nominees.

Senate Majority Leader Harry Reid had earlier promised not to use the nuclear option, which would allow the rules to be changed on a majority vote rather than the usual two-thirds that rules changes are supposed to require. Republicans said they fear Mr. Reid is about to recant.

The Nevada Democrat was coy when asked about his intentions Tuesday.

“I have given numerous statements on my position about nominations and legislation,” he said. “The ball is in their court. I’m not going to be talking about it anymore.”

Mr. Reid argues that as part of the deal he struck earlier this year to avoid eliminating the filibuster, Republicans agreed to avoid obstructing all but the most egregious of the president’s picks. He said the GOP hasn’t lived up to that part of the bargain.

As of the end of May, the Senate had confirmed 23 percent of Mr. Obama’s 181 nominees to top civilian posts this year. At the same point in 2005 the Senate had confirmed 29 percent of President George W. Bush’s nominees, and had approved a stunning 41 percent of President Clinton’s in 1997.

The most immediate test could come on the three new D.C. Circuit nominees: Patricia Ann Millett, who has served in administrations of both parties; Cornelia Pillard, who has served as deputy assistant attorney general and former assistant to the solicitor general; and Judge Robert L. Wilkins, who was confirmed unanimously for the D.C. District Court in 2010.

Republicans argue the nominees are partly in retaliation for the court’s decision overturning Mr. Obama’s NLRB picks. They said the D.C. court has such a low caseload that it doesn’t need the 11 judges it is allotted.

House and Senate Republicans have written legislation to cut the court down to the eight judges it currently has.

“President Obama knows these facts, so his nominations today to the D.C. Circuit are an obvious effort to pack a court that has frustrated his liberal, big-government ambitions,” said Rep. Tom Cotton, an Arkansas Republican who introduced his bill Tuesday.

Mr. Obama, though, said the Judicial Conference of the United States, which is led by Supreme Court Chief Justice John G. Roberts Jr., recommended in April that the D.C. Circuit keep its full complement of 11 judgeships.

“We’re not adding seats here,” he said. “We’re trying to fill seats that are already existing.”