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. This court’s decisions affect the entire country, making it second only to the Supreme Court in national importance.
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. There are now three vacancies on the 11-member court, and President Obama has nominated three highly qualified people – Patricia Millett, Cornelia “Nina” Pillard, and Robert Wilkins – to fill them. But Senate Republicans – who blocked President Obama’s efforts to get even one judge onto the DC Circuit during his first term – are gearing up for more obstruction. Too much is at stake for us to allow that to happen again.
The DC Circuit Is Unique. The DC Circuit by law is the exclusive court to consider appeals of an 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 due to its expertise in complex administrative matters.
While the Supreme Court is better known, it only hears a miniscule portion of appeals that are filed with it. So when the DC Circuit makes a ruling, it is almost guaranteed to be the last word on the matter.
Every facet of our lives is affected by some aspect of federal law, whether it’s 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 current ideological imbalance on the DC Circuit has led to troubling decisions, frequently 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. And in May, the DC Circuit struck down a law requiring employers to tell workers of their legal rights, claiming it violated the employers’ free speech rights.
Environmental Protection: In 2012, 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 13,000-34,000 premature deaths, 15,000 non-fatal 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: In 2012, 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.
Obstructing the President’s Nominees. 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 also nominated Principal Deputy Solicitor General Sri Srinivasan, whose nomination Republicans delayed for nearly a year before finally lifting objections to a committee hearing. He was finally confirmed in May.
What’s Next? There are now three vacancies on the 11-member court, and President Obama has nominated three highly qualified people – Patricia Millett, Cornelia “Nina” Pillard, and Robert Wilkins – to fill them. Republicans who voted to fill the ninth, tenth, and eleventh seats with George W. Bush nominees are now saying the court only needs eight judges, with some signaling that they will try to obstruct the nominations. This effort to rig the court by preventing a Democratic president from filling existing vacancies shows a deep hostility to the constitutional ideal of an independent judiciary, and it must be countered.
The Judiciary Committee must hold timely hearings to allow senators to question the nominees, and the full Senate must be allowed to hold timely confirmation votes on all three 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 Americans in our everyday lives.