Second only to the Supreme Court, the DC Circuit Court of Appeals is considered the most important federal court. It’s the body that hears the challenges to every unpopular regulation proposed by a federal agency. For instance, the court of appeals is currently hearing a spate of lawsuits from private companies arguing that they should be exempt from providing contraception coverage to workers because of their religious views. Right now, this key appellate court has more vacancies than it’s had in a decade—and congressional Republicans are hoping to keep it that way.
Authorized for 11 judgeships, the court presently has only eight judges. Republicans claim that the court is “evenly divided” among judges appointed by Republicans and Democrats. But the court also has six semi-retired senior judges who still hear cases. When they’re included, Republicans have a 9-5 majority. Many of those GOP nominees are also hardcore conservative ideologues. Among them: Janice Rogers Brown, who almost didn’t get confirmed during the George W. Bush administration because of her extreme libertarian views. An Ayn Rand fan, Brown considered Supreme Court decisions upholding minimum-wage laws “the triumph of our socialist revolution.”
The Republican majority on this court has been able to advance aspects of the GOP’s anti-regulatory agenda that the party has failed to accomplish legislatively. Last year, for instance, the DC Circuit struck down a set of environmental rules 20 years in the making that would have held states responsible for pollution that leaked across their borders. The DC Circuit’s conservative majority would shrink considerably should Obama succeed in getting all of his nominees confirmed. That’s why Republicans have been blocking Obama from filling those three slots. (Overall, Obama’s judicial nominees have waited an average of 277 days before getting a confirmation vote, compared with 175 during the George W. Bush administration.)
Along with trying to filibuster Obama’s nominees, the GOP has come up with a clever scheme to shrink the number of judges on the appeals court to deny Obama vacancies to fill. Congressional Republicans have claimed that the DC appeals court is under-worked and thus the shrinkage is justified. And they have repeatedly accused Obama of “court packing” simply for trying to fill the existing vacancies on the DC Circuit, comparing the president unfavorably to F.D.R., who attempted to expand the number of Supreme Court seats to shift the balance of power. The talking point is a nifty dodge for Republicans who can’t really come up with a good reason why they won’t confirm Obama’s otherwise uncontroversial and qualified nominees. It allows them to say to the nominees whose judgeships they’re holding up, “Hey, we really think you’re great. The court just doesn’t need any more judges.”
With Sen. Charles Grassley (R-Iowa) leading the charge, the Senate took up a bill, the Court Efficiency Act, to downsize the DC Circuit earlier this year. (Kevin Drum has covered this extensively here.) That legislation has been co-sponsored by the party’s newest stars, Ted Cruz (R-Texas) and Marco Rubio (R-Fla.), along with other tea party Republicans including Utah’s Mike Lee. The House held a hearing on Tuesday to consider its version of this bill, introduced by Rep. Tom Cotton (R-Ark.), which is called the Stop Court-Packing Act. The idea that nominating judges for ordinary federal vacancies is a form of court-packing is a disingenuous claim that has been dismissed even by conservatives. Fox News contributor Byron York, author of The Vast Left Wing Conspiracy, tweeted in May, “It doesn’t strike me as ‘packing’ to nominate candidates for available seats.”
One of the co-sponsors of Grassley’s bill is Sen. Orrin Hatch (R-Utah). While Hatch and his fellow Republicans are now trying to shrink the appeals court, in 2003 he gave a speech decrying the number of DC Circuit vacancies. Hatch noted then that the court was down to only eight judges (which at that time hadn’t happened since 1980), and he called the judicial vacancies “a crisis situation” because of the court’s workload.
As the House and Senate versions of the appeals-court-shrinking legislation wind their way to a vote, Senate Republicans are resorting to more tried and true methods for obstructing the president’s nominees. On Monday night, Senate Majority Leader Harry Reid (D-Nev.) moved to bring the nomination of Patricia Millet to the DC Circuit to the floor for a vote, a move Senate Republicans are vowing to filibuster. (South Carolina’s Sen. Lindsey Graham even promised to hold up every judicial nomination until Democrats present Benghazi survivors for congressional questioning.) Millet’s prospects don’t look particularly good, though even Ted Cruz has acknowledged her “fine professional qualifications.” The last woman Obama nominated to the DC Circuit, Caitlin Halligan, finally withdrew her name in March after waiting almost two and a half years for the Senate to confirm her.