The New York Times reported this week that President Obama is planning to nominate three judges to fill long-vacant seats on the influential D.C. Circuit Court of Appeals. This is hardly unheard of: every president since Jimmy Carter has placed at least three judges on the D.C. Circuit, and Obama only just had his first nominee confirmed to the court.
But Senate Republicans and conservative activists really, really don’t want President Obama to put any more judges on the D.C. Circuit – perhaps because it is currently dominated by Republican nominees who are intent on rolling back things like clean air regulations, cigarette labeling requirements, and National Labor Relations Board rulings.
So the Senate GOP is threatening to filibuster anybody Obama names to the court and even trying to push through a law permanently deleting the vacant judgeships in order to prevent Obama from filling them.
What has resulted is one of the more bizarre manifestations of Obama Derangement Syndrome. The talking point that Senate Republicans and their allies have landed on to defend this planned obstruction is that President Obama, in nominating judges to existing judicial vacancies as is required by his job, is in fact “packing” the D.C. Circuit in the style of FDR. (Or, in the words of The Wall Street Journal’s editorial board, like a “king”).
In a column for Breitbart News yesterday the Family Research Council’s Ken Klukowski goes even further, writing that by merely planning to nominate judges to the court – a constitutional requirement of his job fulfilled by every one of his predecessors – Obama has launched an “attack on the independence of the federal courts,” “declared war on judicial independence,” and is “trying to declare law by executive fiat.”
Now that Obama has declared war on judicial independence, Republicans are planning a counter-strategy. There are 13 federal appeals courts. The D.C. Circuit’s caseload is light, while several other circuits are overloaded. Sen. Charles Grassley and Senate Republicans are proposing moving those three seats to courts that could very much use them. Obama would still appoint those three judges, but not to the D.C. Circuit.
It takes legislation to create or move federal judgeships, so this is shaping up as a major part of the battle over courts that are independent of political manipulation.
There are only 80 slots on the Supreme Court’s docket every year. For 20,000 federal appeals each year, whatever the appellate court says is the final word. Obama is hoping that if he can overhaul the judicial balance of the court, his unprecedented claims of federal power might withstand court challenges. From Obamacare to EPA requirements, labor rules, and IRS rules, all these topics and more are going before the D.C. Circuit.
Obama cannot enact major liberal legislation now that he’s lost the House and might also lose the Senate next year. Instead, he’s trying to declare law by executive fiat. Whether he gets away with it likely turns on whether he can change Senate rules and then pack the D.C. Circuit with sympathetic judges.
This attack on the independence of the federal courts should be of concern to all Americans.