- The Washington Times - Tuesday, May 28, 2013

There was a deceptive lull in the undeclared war between President Obama and Republicans over judicial nominations when the Senate confirmed the president’s first nominee to the prestigious U.S. Court of Appeals for the D.C. Circuit.

Republicans joined Democrats in approving nominee Sri Srinivasan by an overwhelming vote of 97-0 just before leaving for their Memorial Day break last week. The confirmation ended an impasse in which Mr. Obama had become the first president in 50 years to serve a full four-year term without having a single nominee confirmed to the D.C. Circuit, considered a launching pad for jurists to the Supreme Court.

In hailing the vote, Mr. Obama sounded a note of determination that he intends to move quickly to fill three other vacancies on the court — perhaps as soon as this week — and to improve his record of getting judges confirmed by the Senate.

“It’s important to remember that this confirmation is the first one to this important court in seven years,” Mr. Obama said. “The three remaining vacancies must be filled, as well as other vacancies across the country.”

But even as they were providing Mr. Obama with a rare victory, Republican lawmakers served notice to the president that their cooperation was at an end, at least regarding the D.C. Circuit Court. Some Republicans turned their attention to what they called the court’s light workload and said Mr. Obama is intent on needlessly “packing” the court with Democrats to shift the balance of power on the influential panel.

“I certainly hope neither the White House nor my Democratic colleagues will instead decide to play politics and seek — without any legitimate justification — to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda,” said Sen. Mike Lee, Utah Republican. “Both Democrats and Republicans have argued repeatedly that the D.C. Circuit has too many authorized judgeships.”

Mr. Lee is co-sponsor of a bill introduced last month that would reallocate three “unneeded” judgeships from the D.C. Circuit to other federal appeals courts.

The court’s allotment of 11 seats has been a partisan football for years, depending on which party controls the White House. In 2006, when President Bush nominated Peter Keisler to the D.C. Circuit, Democrats blocked the nomination by arguing that there was no pressing need for another judge.

“More than six years have elapsed from that moment, but the D.C. Circuit’s caseload remains just as minimal as it was back then,” Mr. Lee said Thursday on the Senate floor. “The court’s caseload has actually decreased since the time Democrats blocked Mr. Keisler. The total number of appeals filed is down over 13 percent, and the total number of appeals pending is down over 10 percent.”

Carl Tobias, a law professor at the University of Richmond, said pitting the D.C. Circuit’s caseload against those of other federal appeals courts is an “apples and oranges” comparison because the D.C. court handles cases that other courts don’t. For example, the D.C. Circuit is the arbiter of challenges to rule-making by federal agencies and of certain national security questions.

Mr. Tobias also noted that the Judicial Conference, which is the policy-making arm of the federal courts, reiterated at a meeting in March that the D.C. Circuit judgeships should not be changed. “That’s all based on conservative estimates of caseload and workload,” he said.

Training ground

Nominations to the D.C. Circuit also get extra scrutiny because of the court’s reputation as a training ground for the Supreme Court. Supreme Court Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg all served on the D.C. Circuit.

Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat, argues that the D.C. Circuit shouldn’t be stripped of any judgeships because of the “unique character” of its caseload.

“The D.C. Circuit Court of Appeals is often considered ‘the second most important court in the land’ because of its special jurisdiction and because of the important and complex cases that it decides,” Mr. Leahy said.

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