New Battle Against Senate GOP Obstruction

The Federal Appeals Court for the District of Columbia Circuit is the second most powerful court in the nation after the Supreme Court. It often gets the last word on a wide variety of regulations, including those on Wall Street and polluters like oil companies and utilities, as well as on labor and national security matters. It doesn’t matter if we pass Obamacare or Dodd-Frank or unions work hard to win new protections for workers if the D.C. Circuit simply strikes down our accomplishments later.

Despite its evident importance, more than a quarter of the seats on the D.C. Circuit are sitting empty today – one since 2005. Today, President Obama set about fixing that. He nominated three highly-qualified individuals to fill the remaining three vacancies. These are vacancies the president noted that the Constitution compels him to fill — and vacancies which were filled during the Bush administration when the court had its full 11 members.

Senate Republicans have something else in mind: simply abolishing these seats altogether in order to prevent the president from filling them in order to give this important court more balance. (The D.C. Circuit’s main judges are currently split 4-4 in terms of whether they were appointed by a Democratic or Republican president; however, semi-retired judges who still hear cases were overwhelmingly appointed by Republicans and give the court overall a strongly conservative bent.)

Never mind the fact that the the U.S. Judicial Conference (headed by Chief Justice Roberts) has suggested additional judgeships – not fewer – for courts nationwide, and just two months ago said that the D.C. Circuit needs all 11 seats.

As the president said today, this partisan plan to shrink the D.C. Circuit “makes no sense” and is a “blatant political move” by Senate Republicans.

What’s more, Senate Republicans are also currently holding up other important nominees, including those to head the Department of Labor, the Environmental Protection Agency, and the Consumer Financial Protection Bureau.

It’s looking as if July is setting up to be an important showdown over whether Republicans are allowed to continue with their unprecedented level of partisan obstruction or whether Senate Majority Leader Reid invokes the so-called “nuclear options,” the elimination of the filibuster for some or all nominations (but not legislation).

Here’s the facts:

  • President Obama’s judges have waited, on average three times as long as Bush’s judges to get confirmation votes, only to eventually be confirmed – most of them unanimously.
  • One academic measure of obstruction and delay finds the level for Obama’s appeals court nominees to be the highest that’s ever been recorded.
  • “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 (i.e., more than 182 days).”
  • Both Presidents Bush and Clinton managed to significantly decrease the number of judicial vacancies during their first terms — by nearly 2/3 in the case of Bush. By contrast, vacancies have increased by almost 50 percent under President Obama, partly due to direct obstruction and partly due to senatorial foot-dragging in terms of helping the administration select federal district court nominees from their home states.
  • President Obama is the only president since Woodrow Wilson to go a full four year term without getting a single judge confirmed to the D.C. Circuit.
  • We could go on, but you get the picture. (You can find more HERE.) Things are much, much worse when it comes obstruction under President Obama than they have ever been before. And we haven’t even talked about the new normal in which the GOP requires 60 votes to pass almost any legislation in the Senate, a threshold never envisioned in the Constitution.

    Senate Republicans already held up one of the president’s previous well-qualified D.C. Circuit nominees for a three-year period, filibustering her twice before she finally asked the president to withdraw her nomination.

    BOTTOM LINE: Enough is enough, it’s time for Senate Republicans to drop their unprecedented efforts to block the president’s nominees to important positions and the courts. If they don’t step aside, it’s time for Senate Democrats to consider making changes so the Senate can do its job again.

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    Advocacy Team