From A Crawl to A Sprint: Obama and the D.C. Circuit

On June 4, 2013, President Obama made three nominations to the U.S. Court of Appeals for the D.C. Circuit.  It remains to be seen how many of these nominees will be confirmed to this essential court. Republicans are in no rush to fill more seats on this Circuit, having already defeated one nominee to this court.  Some predict another confrontation over the use of the filibuster should Republicans refuse to allow floor votes on all three nominees.  Given the possibility of a D.C. Circuit confirmation fight, this post reviews what’s happened with D.C. Circuit nominees since 2009.

When President Obama assumed his office, there were two vacancies on the eleven-member court.  On was created when Judge Raymond Randolph took senior status in 2008.  The other when then-Judge John Roberts was confirmed to the Supreme Court.  President Bush had nominated assistant attorney general Peter Keisler to the seat in January 2006, but the Senate sat on his nomination for the next three years.  The Senate had also eliminated a seat on the Circuit in 2007.

President Obama was not quick to make any nominations to the D.C. Circuit.  Although there were reports he considered nominating then-White House Counsel Greg Craig, the President did not act until September 29, 2010, when he nominated Caitlin Halligan.  There were rumors the White House looked at nominating Sri Srinivasan then as well, only to back down when progressive interest groups raised concerns about his representation of corporate clients in private practice.

In 2011, another seat on the D.C. Circuit came open when Judge Douglas Ginsburg announced he would take senior status, and yet Halligan remained the lone nominee.  Republicans opposed her confirmation, going so far as to filibuster her on the floor of the Senate.  Her nomination was thus returned to the White House at the end of the session.  Thus at the start of 2012 there were three vacancies, and no nominees.  The White House did not decide to re-nominate Halligan until June, at which point the President finally nominated Sri Srinivasan as well.   Nominations made this late in an election year rarely fare well, and these nominations were no exception.  To top it off, the White House opted to nominate Srinivasan without first seeking ABA review, as it has for all of its other judicial nominees.  There’s nothing inherently wrong with eschewing pre-nomination ABA review — that was the Bush Administration policy — but it was a departure from this administration’s standard practice.

After the election, Halligan and Srinivasan were renominated.  Seeing that GOP opposition to her confirmation had not softened, Halligan withdrew in March, becoming the second Obama nominee (after Goodwin Liu) to be defeated by a minority filibuster.  Srinivasan, on the other hand, was promptly confirmed by a unanimous Senate.  Yet there would still be three open seats on the court, as Judge David Sentelle also elected to take senior status.

 

A question worth considering is why did the administration decide to make these three nominations now?  Up until this point, the administration had not made judicial nominations much of a priority.  Whereas Republican opposition has made it more difficult for the President to name and confirm nominees in parts of the country, there are no home state Senators with whom the White House has to consult for the D.C. Circuit.  If filling these seats had been a priority, one might have expected the Administration to act with more alacrity in identifying nominees.

Why, then, would the President suddenly make filling the D.C. Circuit a priority?  Doug Kendall and Simon Lazarus suggest an answer in the article upon which I commented in this essay and my previous D.C. Circuit post: “there are few things more vital on the Obama’s second-term agenda” than confirming judges to the D.C. Circuit.  With an uncooperative Congress, President Obama can only advance his policy agenda through unilateral executive action.  As Kendall and Lazarus see it, such action will be threatened by judicial review unless President Obama can create a substantial liberal majority on the D.C. Circuit.  Although the White House has not said as much, this is entirely consistent with its approach.  Filling vacancies on the D.C. Circuit was an afterthought until the administration concluded it would need a compliant court reviewing its administrative initiatives.

Some who commented on my prior post took exception to my statement that “President Obama has prioritized his D.C. Circuit nominees because he’s hoping to influence the ideological orientation of that court, not to address the problem of judicial vacancies.”  I think the record amply bears this out.  But I should also add that there is nothing wrong with a president “hoping to influence the ideological orientation” of a court through nominations.  Elections have consequences, and one consequence of winning the White House is the ability to name judges who share the President’s judicial philosophy.  That’s the way the system works.

One reason I suspect some progressives don’t like this characterization of the President’s actions is that they see this as an argument for opposing the President’s nominees.  After all, when Senate Democrats began targeting and delaying Republican judicial nominees in the 1980s, this was their excuse.  If Senate Democrats were justified in opposing late Reagan and Bush nominees because these administrations were seeking to alter the ideological balance on federal appellate courts, why wouldn’t  Senate Republicans be justified in adopting a similar tactic now?  An alternative view is that neither party should seek to obstruct or oppose qualified judicial nominees.  In a future post, I will outline the sort of compromise deal that could lead us in this direction.