Despite progressive victories in 2012, the far right’s outsized influence on the United States Court of Appeals for the District of Columbia Circuit gives them the power to undermine progressive laws and thwart the agenda that Americans elected President Obama to pursue.
The DC Circuit is dominated by right wing ideologues who are deeply hostile to the use of a robust federal government to tackle national problems and make our lives better. Senate Republicans blocked President Obama’s efforts to get even one judge onto the DC Circuit during his first term. Too much is at stake for us to allow that to happen again.
The DC Circuit Is Unique. Congress requires the DC Circuit to be the immediate and exclusive court to consider appeals of a breathtaking array of agency regulations and decisions affecting the entire country. Moreover, even when parties appealing agency decisions, congressional statutes, or presidential actions have a choice of venues, they often choose to have their cases heard by the DC Circuit, sometimes due to its expertise in complex administrative matters and sometimes to take advantage of the court’s ideological imbalance.
While the Supreme Court is better known, it only hears a miniscule proportion of appeals that are filed with it. So when the DC Circuit makes a ruling, it is almost guaranteed to be the last word.
Every facet of our lives is affected by some aspect of federal law: Whether its clean air rules, gun safety, telecom regulations, investor protection rules, securities fraud laws, labor law, banking regulations, food safety requirements, credit card regulations, election law … All these can be appealed to the courts, and that court is often the DC Circuit. So for those seeking to block a progressive federal government agenda, the DC Circuit is an important vehicle.
Consequences of Far Right Domination of the DC Circuit. Unfortunately, the far right has gotten exactly what they wanted from their successful efforts to stack the DC Circuit with ideologues during the Bush Administration. It can now be counted on to make disastrous rulings, especially ones favoring the powerful and limiting the role government can play to address national problems. A sampling of those decisions:
Workers’ Rights: The DC Circuit in January issued a ruling on recess appointments – Noel Canning v. NLRB – that undermined every action the Board has taken for over a year and threatened to prevent it from functioning at all going forward. The ruling was an unprecedented gift to Senate Republicans, who, if the ruling stands, can now wield the filibuster to keep NLRB vacancies open indefinitely and keep it from functioning at all – or at least until a Republican president is the one making nominations.
Environmental Protection: Last summer, in the much-criticized EME Homer City Generation case, the court struck down important new EPA rules on air pollution that crosses state lines. Based on the administrative record and its expertise on environmental health, the agency had concluded that the rules would prevent 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma. They would
also save $280 billion a year in healthcare. But the conservative DC Circuit rejected the conclusions of experienced experts at the EPA and threw the rules out.
Consumer Health and Safety: Last summer, the DC Circuit struck down FDA rules requiring graphic warning images on cigarette packages. In addition to text warnings, cigarette packages would also have pictures depicting the factual, negative health consequences of smoking cigarettes. In other words, consumers would see the results of using this particular product in the manner intended by the manufacturer. In an opinion written by one of George W. Bush's most notorious nominees, Janice Rogers Brown, the DC Circuit concluded these warnings violate the tobacco companies’ First Amendment rights.
Protecting Main Street From Wall Street Abuse: In 2010, the SEC adopted rules aimed at increasing corporate accountability by requiring companies to include qualifying shareholders’ nominees in the proxy material, not just the slate preferred by management. The SEC, acting with Congressional authority under the Dodd Frank law, based its rules on a voluminous record and an exhaustive cost-benefit analysis. But in 2011, the DC Circuit struck down the SEC’s rule, claiming that the SEC had not engaged in an adequate cost-benefit analysis.
Another gift to financial giants came in the Noel Canning case discussed above, the reasoning of which would also apply to Richard Cordray’s recess appointment to the Consumer Financial Protection Bureau. Under the law creating the Bureau, it cannot do many of its most important tasks without a director. So Republicans filibustered Cordray, acknowledging that their objection was not to him but to the strong Board whose creation they had failed to torpedo. The DC Circuit’s ruling lets Senate Republicans use obstruction rather than legislation to gut the work of an important consumer protection agency.
What’s Next? There are now four vacancies on the 11-member court. In 2011 and again in 2013, Senate Republicans – determined to keep Obama from restoring the court's balance – filibustered the indisputably qualified Caitlin Halligan. Republicans who said the Constitution prohibited filibusters of George W. Bush's judicial nominees nevertheless filibustered Halligan. Republicans who condemned opposing Bush's judicial nominees because of arguments they had once made as lawyers representing their clients filibustered Halligan because of legal arguments she had once made on behalf of her clients.
President Obama has also renominated Principal Deputy Solicitor General Sri Srinivasan, whose nomination he first put forward last year but who has not yet had a Senate Judiciary Committee hearing. The Senate Judiciary Committee's ranking Republican has delayed Srinivasan's hearing on an essentially unrelated issue, but we expect that hearing will soon be scheduled and that the nomination will move speedily through the Committee.
Moving forward, the White House needs to nominate high quality candidates from diverse professional backgrounds for the remaining vacancies. In all cases, the Senate must be allowed to hold timely confirmation votes on these nominees once they are vetted by the Judiciary Committee. Balance must be restored to the nation's second most important court, so it will again issue decisions reflecting the wisdom of judges who understand the impact of the law and the Constitution on everyday Americans.