- 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.

The battle over judges is being renewed as Mr. Obama hopes to improve on his first-term record of confirmations, which ranks fourth on a percentage basis out of the past five presidencies. Only President George H.W. Bush had a lower confirmation average on his nominees. A report this month by the nonpartisan Congressional Research Service found that Mr. Obama had the second-lowest percentage of circuit court nominees confirmed in his first term, 71.4 percent. President Reagan had the highest percentage, 86.8 percent.

Among the past five presidents during their first terms, Mr. Obama also was tied with President Clinton for the lowest number of circuit nominees confirmed with 30. Mr. Bush had the most, 42.

Court vacancies have risen during Mr. Obama’s presidency. He inherited 13 circuit court vacancies in 2009; that number rose to 17 by the end of his first term. There were 42 district court vacancies when President George W. Bush left office in 2009; that figure increased to 64 at the end of Mr. Obama’s first term.

GOP pushback

Sen. Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, said Republicans are treating Mr. Obama’s nominees more fairly than Senate Democrats treated candidates nominated by George W. Bush. He said 22 judges have been confirmed in the first four months of Mr. Obama’s second term, while only four judges were confirmed during the same time period in 2005, the beginning of Mr. Bush’s second term.

“Based on that record, what can the Senate Democrats possibly complain about?” Mr. Grassley asked. “The bottom line is they can’t complain — or they shouldn’t complain.”

The Congressional Research Service report says Mr. Obama was slower than his predecessors in nominating judges, especially in the first three years of his first term. But the report also noted that Mr. Obama’s nominees have waited longer than those of other presidents for a vote.

“President Obama is the only one of the five most recent presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year,” the report said.

Senate Majority Leader Harry Reid, Nevada Democrat, said Republican lawmakers are engaged in a deliberate stalling of the nominations process, if not often rejecting nominees outright.

“Republican obstruction has slowed down nearly every nominee President Obama has submitted,” Mr. Reid said on the Senate floor. “Even Cabinet secretaries have faced unparalleled procedural hurdles, and Republicans are threatening to block many more of them. The confirmation process has moved at a glacial pace because of extraordinary Republican obstruction.”

Senate Minority Leader Mitch McConnell, Kentucky Republican, said the GOP has been “operating in a very collegial and sensible way,” while fulfilling its constitutional duty to weigh Mr. Obama’s selections.

“I don’t know what the majority leader thinks ‘advise and consent’ means,” Mr. McConnell said. “Listening to him it means: ‘Sit down, shut up, don’t ask any questions, and confirm immediately.’ I don’t think that is what the Founding Fathers had in mind.”

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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