DC Circuit

President Obama Blasts GOP Obstruction, Nominates Three to Influential Court

Today, President Obama nominated three people – experienced appellate attorney Patricia Millet, Georgetown law professor and former civil rights attorney Cornelia “Nina” Pillard and D.C. District Court judge and former public defender Robert Wilkins – to the influential Court of Appeals for the D.C. Circuit.

All three have stellar qualifications. Yet, Senate Republicans were threatening to block all three even before they knew who the nominees would be.

In a Rose Garden speech introducing the nominees, President Obama blasted Republican obstruction and urged the Senate to quickly review and hold votes on all three. “The Constitution demands that I nominate qualified individuals to fill those seats,” he said. “What I am doing today is my job.  I need the Senate to do its job.”


So one of the most important responsibilities of a President is to nominate qualified men and women to serve as judges on the federal bench. 

And Congress has a responsibility, as well.  The Senate is tasked with providing advice and consent.  They can approve a President’s nominee or they can reject a President’s nominee.  But they have a constitutional duty to promptly consider judicial nominees for confirmation.

Now, throughout my first term as President, the Senate too often failed to do that.  Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. 

As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.  Let me repeat that:  My nominees have taken three times longer to receive confirmation votes than those of my Republican predecessor.  These individuals that I nominate are qualified.  When they were given an up or down vote in the Senate -- when they were finally given an up or down vote in the Senate, every one of them was confirmed.  So this is not about principled opposition.  This is about political obstruction. 

Despite that, some Republicans recently have suggested that by nominating these three individuals, I’m somehow engaging in -- and I’m quoting here -- in “court-packing.”  (Laughter.)  No -- people laugh, but this is an argument I’ve made.  For those of you who are familiar with the history of court-packing, that involved Franklin Delano Roosevelt trying to add additional seats to the Supreme Court in order to water down and get more support for his political agenda.  We’re not adding seats here.  We’re trying to fill seats that are already existing.  Each of the past five Presidents has seen at least three of their nominees confirmed to the D.C. Circuit.  Since I’ve been President, obstruction has slowed that down to one. 

Right now, there are three open seats on a critical court.  I didn’t create these seats.  I didn’t just wake up one day and say, let’s add three seats to the District Court of Appeals.  These are open seats.  And the Constitution demands that I nominate qualified individuals to fill those seats.  What I am doing today is my job.  I need the Senate to do its job.

For more background on the D.C. Circuit, see PFAW’s Marge Baker’s piece in the Huffington Post yesterday, “Five Things Republicans Don’t Want You to Know About the D.C. Circuit.”

PFAW

Tell the Senate: No More Obstruction; Fill the D.C. Circuit!

BREAKING: President Obama Announces Nominees to Fill Critical Seats on D.C. Circuit. Tell the Senate to CONFIRM Cornelia Pillard, Patricia Ann Millet and Robert Leon Wilkins without delay.

Attacks on Obama's D.C. Circuit Nominations Get More and More Absurd

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.
 

 

1000-Day Judicial Vacancy in Georgia

Georgia's senators are keeping President Obama's 11th Circuit Court nominee from even having a committee hearing.
PFAW

Susan Collins’ D.C. Circuit Hypocrisy

Maine Republican Sen. Susan Collins signed on today as a cosponsor of a blatantly political bill meant to deny President Obama, unlike any of his predecessors, the ability to fill vacancies on the D.C. Circuit Court of Appeals.  

The D.C. Circuit is the second most influential court in the country, behind the Supreme Court. It has the final word on scores of federal laws and regulations, from consumer protections to workers’ rights to environmental protections

For more than 30 years, presidents of both parties have placed numerous judges on the D.C. Circuit:

Senate Republicans prevented President Obama from placing a single nominee on the court during his first term and the first four months of his second, despite the fact that one-third of its active judgeships were vacant. They were so eager to keep the court dominated by Republican-nominated judges that they twice filibustered President Obama’s first nominee to the court, the eminently qualified Caitlin Halligan. Yesterday, after a ten-month delay, the Senate finally confirmed an Obama nominee, Sri Srinivasan, to fill one of the court’s four vacancies. But Republicans are indicating that their cooperation will stop there.

Senate Republicans are not only vowing to block any Obama nominees to the remaining three seats on the D.C. Circuit, they are actually proposing a bill that would eliminate those three seats entirely in order to prevent President Obama from filling them. 

The bill, sponsored by Senate Judiciary Committee ranking member Chuck Grassley and cosponsored by every other Republican member of the Judiciary Committee, just gained its first non-committee cosponsor: Sen. Collins.

The bill’s backers claim that the D.C. Circuit doesn’t have a great enough workload to justify filling the remaining three judgeships. However, Sen. Collins’ own voting record provides a perfect refutation of that argument.

Sen. Collins and her allies object to Obama’s filling the 9th, 10th and 11th seats on the D.C. Circuit. However, when George W. Bush was president, Sen. Collins had no such reservations about the need to fill the court's vacancies. In 2006, Collins voted to confirm Bush nominee Brett Kavanaugh to the 10th seat on the D.C. Circuit. In 2005, she voted to confirm Bush nominees Janice Rogers Brown to the 10th seat on the court and Thomas Griffith to the 11th.

Following the Griffith confirmation, which Collins supported,  the D.C. Circuit’s caseload was 119 cases per active judge. If every one of the D.C. Circuit’s 11 seats were filled today --  including the three seats that Sen. Collins wants to eliminate – the court’s caseload would be slightly higher than it was then, at 120 cases per active judge. Sen. Collins evidently thinks that what was a reasonable caseload for the court under President Bush is  somehow wastefully low under President Obama.

Meanwhile, here is Sen. Sheldon Whitehouse refuting Sen. Grassley’s absurd claim that President Obama is trying to “pack” the D.C. Circuit by filling its vacancies:

PFAW

D.C. Circuit Vacancies: One Down, Three to Go

Senate Republicans kept Sri Srinivasan from getting a committee hearing until ten months after his nomination, and even tried to filibuster him before allowing a unanimous vote to confirm him to the D.C. Circuit Court of Appeals.
PFAW

PFAW Statement on Confirmation of Sri Srinivasan to D.C. Circuit Court of Appeals

WASHINGTON --  People For the American Way Executive Vice President Marge Baker issued the following statement on the Senate’s unanimous confirmation of Sri Srinivasan to the Court of Appeals for the D.C. Circuit:

“We congratulate Mr. Srinivasan on his confirmation to the Court of Appeals for the D.C. Circuit.

“The fact that Senator Reid was forced to file cloture in order to secure an agreement with Republicans to vote on a nominee whom they enthusiastically support is a sign of how far Senate Republicans have taken their mindless obstruction.

“Unfortunately, the Senate GOP is already looking ahead to further obstruction of this critically important court, one-quarter of whose active judgeships still remain vacant. Having prevented President Obama from filling a single seat on the D.C. Circuit until today, they are now threatening to strip the three remaining vacant seats from this important court rather than allow the president to fill them. This promised obstruction is purely politically motivated and cannot be allowed to succeed.”


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McConnell Bobs and Weaves on Judicial Nominations

McConnell tries & fails to justify filibuster of DC Circuit nominee Srinivasan, and throws a GOP-supported 10th Circuit nominee under the bus in the process.
PFAW

The Wall St. Journal's Bizarre Attack on Potential DC Circuit Nominations

The Journal calls Obama a "king" for planning to make nominations to fill D.C. Circuit judgeships as Congress has mandated.
PFAW

The D.C. Circuit and the 'Transformation of the First Amendment'

Garrett Epps writes today in The Atlantic about how the D.C. Circuit Court of Appeals, still dominated by far-right George W. Bush nominees, has been instrumental  in “the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.”

He focuses on the latest example of right-wing D.C. Circuit judges twisting the Constitution to favor corporations over workers and consumers:

We've read of the violence done to the National Labor Relations Board by the D.C. Circuit's December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies' "free speech" rights -- to me, another grave misstep. And I feel the same way about the Circuit's decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment's right against "compelled speech" protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.

We posted an infographic yesterday that shows just how ideologically skewed the D.C. Circuit is. George W. Bush made a concerted effort to pack the court with judges who shared his right-wing ideology (including John Roberts, who went on to be one of the top two most pro-corporate Supreme Court Justices in the past 65 years). In contrast, President Obama is the first president since Woodrow Wilson to not place a single judge on the court during his full first term.

 

PFAW

DC Circuit Strikes Another Blow Against Working People

The DC Circuit says a rule requiring businesses to inform workers of their legal rights unconstitutionally forces businesses into compelled speech.
PFAW Foundation

Republicans Seek to Rig the DC Circuit Court

GOP bill would delete three of the vacancies on the DC Circuit so President Obama would be unable to restore balance to this extremely influential court.
PFAW

Grassley’s Court Packing Plan Plays Politics with Justice System

Senator Charles Grassley proposed a scheme to reduce the number of judges on the DC Circuit Court of Appeals in order to preserve the Court’s current conservative makeup.

Fact Sheet: GOP Obstruction and the D.C. Circuit

Today, the Senate Judiciary Committee holds a hearing on the nomination of Sri Srinivasan to sit on the Court of Appeals for the D.C. Circuit. Srinivasan, who was first nominated ten months ago yet is just now receiving a hearing, is the latest Obama judicial nominee caught in the web of Senate obstruction.  Last month, Republicans blocked the nomination of Caitlin Halligan to a seat on the same court,  despite her impeccable qualifications and strong bipartisan backing. Some important facts to keep in mind during and after today’s hearing:

  • President Obama is the first president since Woodrow Wilson to serve a full first term without putting a single judge on the D.C. Circuit. There are currently four vacancies on the 11-member D.C. Circuit, and three of the remaining judges are eligible for retirement or senior status, meaning we could soon see as many as seven vacancies on this 11-member court. Senate Republicans have prevented President Obama from filling a single one, although he first nominated Srinivasan ten months ago and Halligan in 2010.

  • The D.C. Circuit, which has the final word on reams of executive actions, congressional enactments, and federal regulations each year, is currently dominated by far-right George W. Bush nominees. President Bush succeeded in shifting the courts – and especially the D.C. Circuit -- far to the right during his presidency. His D.C. Circuit nominees have systematically rolled back protections for workers and consumers. A mainstream Obama nominee would provide some much-needed balance to this influential court.
  • Our federal courts are suffering because of entrenched Republican obstruction. Because of both public and silent Republican filibusters, President Obama’s appeals court nominees have been forced to wait an average of 153 days between Judiciary Committee approval and a yes-or-no vote from the Senate. At this point in Bush’s presidency, the average wait for confirmed appeals court nominees was just 37 days. The foot-dragging is unrelated to who the nominee is – even consensus nominees with the strong support of their Republican home-state senators have been forced to wait for months through active or silent filibusters before the Senate is finally allowed to hold a confirmation vote. This pointless obstruction, which is echoed at the district court level, has led to persistently high vacancy rates and longer waits for Americans seeking their day in court.


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Courts Without Judges, Per the GOP Plan

The NY Times explains how Republican obstructionism is the main cause of the judicial vacancy crisis, which is undermining our system of justice.
PFAW

Using the Courts to Derail Reform

Powerful financial entities are turning to conservative judges to undermine the Dodd-Frank financial reform law.
PFAW

Bush’s Court: How the D.C. Circuit Threatens the Future of Progressive Reform

WASHINGTON – Four years into President Obama’s presidency, he has yet to  have a single judge confirmed to the hugely influential Court of Appeals for the D.C. Circuit. This lapse, caused initially by a slow start from the administration but perpetuated by a blockade of obstruction in the Senate, threatens to hinder progressive advances for years to come, argues a new report from People For the American Way.

The report, AMERICA’S PROGRESS AT RISK: RESTORING BALANCE TO THE DC CIRCUIT COURT OF APPEALS, can be found here: http://www.pfaw.org/media-center/publications/america-s-progress-risk-restoring-balance-dc-circuit-court-appeals

“The D.C. Circuit is the most important court most Americans have never heard of,” said Marge Baker, Executive Vice President of People For the American Way. “The D.C. Circuit’s judges have the final word on scores of federal laws each year, from air pollution controls to financial regulations to workers’ rights. Republicans have long understood this, and have packed the court with far-right ideologues who threaten to hold back American progress for decades to come.  And they have so far blocked confirmation of judges who would bring any balance to this court." 

President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office, despite the fact that four of the eleven seats on the court are now vacant. His first nominee to the court, the indisputably qualified Caitlin Halligan, was twice blocked by Senate Republicans for reasons widely recognized as spurious.

As a result, the D.C. Circuit continues to be dominated by judges pushing a right-wing ideology long rejected by the American people. The right-wing majority of the D.C. Circuit has continuously sought to dismantle progressive efforts to defend consumers, protect public health, and ensure the rights of workers. Recent D.C. Circuit decisions highlighted in the report include:

  • Noel Canning v. NLRB:  In January, the D.C. Circuit invalidated three presidential appointments to the National Labor Relations Board, undermining the Board’s ability to protect the rights of workers and giving the green light to Senate Republicans who wish to decimate any federal agency by blocking appointees.
  • EME Homer City Generation v. EPA: In 2012, the D.C. Circuit sided with utility companies to strike down EPA air pollution regulations that would have prevented an estimated 34,000 premature deaths and saved $280 billion a year in healthcare costs.
  • Business Roundtable v. SEC: In 2011, the D.C. Circuit overturned an SEC rule requiring greater accountability from corporations to their shareholders in selecting board members. One observer noted that in doing so the judges – none of them securities experts – had “waded into a political fight under the guise of dispassionate scientific oversight.”
  • RJ Reynolds Tobacco v. FDA: Last year, the D.C. Circuit ruled that FDA regulations requiring cigarette manufacturers to place graphic, factually accurate warnings on their product violated tobacco companies’ First Amendment free speech rights.
  • Hein Hettinga v. USA: George W. Bush nominee Janice Rogers Brown used a case about milk market regulation last year to issue a call to arms against eight decades of progressive reforms. Courts that have allowed the government to implement reasonable regulations of industry have, she said, put “property…at the mercy of pillagers.”

“President Obama has a chance in his second term to restore ideological balance to the D.C. Circuit,” added Marge Baker. “It is critically important that he do so. Otherwise, D.C. Circuit will continue to stand in the way of progressive reforms -- reforms chosen by American voters -- and threaten to roll back decades of hard-won protections for working people and consumers."
 

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America's Progress at Risk: Restoring Balance to the D.C. Circuit Court of Appeals

Even in electoral defeat, the far right retains the power to undermine progressive laws and thwart the agenda that Americans elected President Obama to pursue. One measure of that power is the outsized influence far-right ideologues have on the United States Court of Appeals for the District of Columbia Circuit.

Obama Talks to Senators About Broken Judicial Confirmation Process

Republicans ended their year-long blockade of an unopposed circuit court nominee after unjustly torpedoing another with a filibuster.
PFAW

PFAW: GOP and NRA Leadership Keep Two Qualified Women off the Bench

WASHINGTON – Today, Nevada judge Elissa Cadish withdrew her nomination to sit on the U.S. District Court for the District of Nevada, more than one year after President Obama first nominated her to the position. Despite her sterling qualifications, Cadish was never even granted a hearing before the Judiciary Committee because Nevada Sen. Dean Heller refused to give permission for her nomination to move forward.

Earlier this week, the nomination of D.C. Circuit Court of Appeals nominee Caitlin Halligan was blocked by Senate Republicans under similar circumstances. Halligan and Cadish both faced unfounded attacks from the gun lobby’s leadership, Halligan for a position she took on behalf of a client and Cadish for correctly describing the state of Second Amendment law before the Supreme Court’s District of Columbia v. Heller decision. Both have clearly stated that they understand and would follow Supreme Court precedent on gun rights.

“Senate Republicans and the gun lobby have worked hand in hand to keep these two exceptionally qualified women off the federal bench,” said Marge Baker, Executive Vice President of People For the American Way. “Neither Cadish nor Halligan has displayed character or ethics problems let alone any sort of extreme ideology like that they were accused of. Yet Halligan was never allowed an up-or-down vote from the Senate, and Cadish never even had the opportunity to answer senators’ questions on her record before the Judiciary Committee.”

“The sinking of these two nominees shows just how far the Senate GOP and the gun lobby are willing to go, and how badly they are willing to stretch the facts, in order to keep President Obama’s nominees off the federal bench,” Baker added.

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