For one of the newest entries in the Republican spin war on the D.C. Circuit, check out conservative writer Ramesh Ponnuru's column in Bloomberg yesterday. The title alone – Republicans Shouldn't Let Obama Pack the Courts – tells you something important: A column that calls the simple act of nominating people to fill existing judicial vacancies "packing the courts" should be taken with a huge grain of salt.
As just about everyone has pointed out, "court-packing" refers to the FDR scheme to add seats to the Supreme Court in order to achieve desired rulings. Filling existing vacancies is run-of-the-mill constitutional procedure. The closest we've seen to court-packing in a long time isn't President Obama's nominating three qualified nominees to the D.C. Circuit, but the Republican Party's scheme to strip multiple judgeships from that court in order to maintain its current far-right tilt.
Ponnuru also writes that:
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points
In fact, the situations are hardly similar. Democratic filibusters of a few Bush-43 nominees were all based on their records. Whether it was Janice Rogers Brown, Brett Kavanaugh, or Miguel Estrada, the conversations during committee hearings and floor debates were about their records, not whether President Bush had a right to nominate anyone at all to the court. In contrast, Republicans signaled their intent to block President Obama's three nominees even before knowing who they would be.
Ponnuru writes that the D.C. Circuit has less work than it did when Bush's nominees were confirmed. In fact, Tenth Circuit Judge Timothy Tymkovich – the conservative, Bush-43-nominated jurist who is the chair of the Judicial Conference's Committee on Judicial Resources – testified before the Senate Judiciary Committee just a few weeks ago that this simply is not true. But even if you used the definition of caseload that Ponnuru's statement is based on (raw case filings without regard to the complexity of the cases), it still serves only to highlight GOP hypocrisy on the issue: As we have pointed out before, President Bush and Senate Republicans worked to fill these same seats in 2003 when the number of case filings was less than it is today.
Ponnuru also mischaracterizes an anonymous letter Senator Grassley claims to have received from a D.C. Circuit judge, suggesting that the letter somehow supports the notion that the current judgeships should not be filled.
First, legislators shouldn't be basing their decisions on edited comments from anonymous sources that are not even entered into the formal record or made available for public inspection and questions from senators. Secondly, it's clear from Grassley's rendition of the letter that it was talking about creating new judgeships, not filling existing vacancies. Here's what Sen. Grassley has said the anonymous judge wrote:
I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around. [emphasis added]
Since no one is talking about adding new judgeships to the D.C. Circuit, the quote has nothing to do with the situation before us.
Ponnuru also says that the court is actually balanced between Democratic and Republican appointees. While that is true for active judges, five of the court's six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court's work, and they maintain a strong influence over the court. So when you draw a three-judge panel, there is a high likelihood that it will have a conservative majority, because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. Senate Republicans like those numbers and would like to keep them that way.
But there is a bigger picture: Even if everything that Ponnuru said was accurate, Congress has by law established the D.C. Circuit as a court with eleven active judgeships. Senate Republicans don't like that, so they are using obstruction to make it de facto an eight-judge court. There are proper, constitutionally mandated ways of changing the law: Get Congress to pass a bill and the president to sign it. Nullifying and rewriting the current law through obstruction is not what the Founders had in mind, and it would make a lousy Schoolhouse Rock bit.