- - Tuesday, November 26, 2013

At the outset of his presidential campaign, in 2007, Barack Obama said that he was “running in this race because of what Dr. King called ‘the fierce urgency of now.’ Because I believe that there’s such a thing as being too late. And that hour is almost upon us.”

Six years later, as President Obama and his helpers on the Hill abruptly rewrote the Senate rulebook last week just to secure the confirmation of judges to the U.S. Court of Appeals for the D.C. Circuit, one can’t help but ask: Why their fierce urgency, now?

For at least two years, liberals in Washington and in the media have been obsessed with adding more judges to the D.C. Circuit, a court that hears cases challenging the work of the federal regulatory agencies. Their obsession focused on a small handful of decisions in which the court overturned a regulation — such as Business Roundtable v. SEC, in which the agency simply failed respond meaningfully to public comments on the agency’s cost-benefit analysis. Because federal statutes required the SEC to respond to such comments and to seriously analyze the issue, the court rightly told the agency to go back and try again.

The left’s relentless criticism of that case and a few other cases obscured the fact that the D.C. Circuit has been overwhelmingly favorable to the Obama administration. According to statistics kept by the federal judiciary, the D.C. Circuit reversed agency decisions in less than 17 percent of cases it decided between  2009 and 2012. It reversed the administration even fewer times than it did the George W. Bush administration — between 2001 and 2008, it reversed the agency in almost 19 percent of cases.

In fact, the D.C. Circuit has not hesitated to affirm some of the administration’s most significant, controversial regulations. Most notably, the court affirmed the Environmental Protection Agency’s massive push to regulate greenhouse gas emissions, despite the fact that the EPA’s program produced (in the EPA’s own words) such “absurd results,” in terms of the sheer scope of the program’s administrative burdens, that the agency had to re-write the Clean Air Act to at least temporarily slow the program’s roll-out.

Furthermore, President Obama and the Democrats already have succeeded in negating the impact of another D.C. Circuit decision that it criticized. After the D.C. Circuit ruled that Mr. Obama violated the Constitution by appointing new leaders at the National Labor Relations Board without Senate confirmation (in a case called Noel Canning v. NLRB, which will soon be heard by the Supreme Court), the president secured a deal with the Senate to confirm new NLRB members, as well as the new director of the Consumer Financial Protection Bureau (who had also received an “unconfirmed” appointment).

Nevertheless, Democrats remained obsessed with adding new judges to the D.C. Circuit. And first among them in this single-minded pursuit was the president himself. In the weeks leading up to Senate Majority Leader Harry Reid’s use of the “nuclear option” to rewrite Senate rules on the filibuster in order to confirm judges, the president lobbied senators to get his judges confirmed, according to the National Law Journal. The NLJ went on to quote White House Counsel Kathryn Ruemmler as saying, “I’ve talked to him virtually every day about the subject. … He’s watching closely what the Senate does. … He’s not going to just sit idly by.” Keep in mind, at that point he already had put one new judge on the court; he was fighting to get three more.

Again, why the fierce urgency of now? One cannot help but wonder what the administration has in mind, what actions its agencies plan to take next, that the administration fears would be vulnerable in court absent the sudden addition of three new judges.

Perhaps the administration and Senate Democrats simply needed to change the subject away from Obamacare’s colossal failure. That’s one possible explanation. But given this administration’s second-term “regulatory cliff” (as Ohio GOP Sen. Rob Portman aptly called it), it is not hard to conceive of other reasons why the administration would want new judges on the D.C. Circuit.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. He is counsel in a federal lawsuit challenging President Obama’s appointment of the CFPB director, mentioned in this column. “Arbitrary and Capricious” runs monthly.

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