People For the American Way

The Republican Argument For Filibustering DC Circuit Nominees Is Bogus. Here Are The Numbers To Prove It

A growing number of Senate Republicans are threatening to filibuster all three of President Obama’s nominees to the Court of Appeals for the D.C. Circuit, an influential federal court that is currently operating with three of its eleven active seats vacant. Their stated reason for the filibuster is bogus.

The real motivation behind this mass filibuster is transparent: The court has an enormous influence over federal policy and is currently dominated by conservative ideologues nominated by Republican presidents.

While President Obama has had just one nominee confirmed to the court, President George W. Bush had four confirmed, George H.W. Bush had three and Ronald Reagan had eight. In fact, 15 of the last 19 judges confirmed to the court were nominated by Republican presidents. The most extreme of these have used the position to impose their far-right ideology on issues including clean air and water, workers’ rights and consumer protections. It’s easy for them to do these days, since, including senior judges, Republican-nominated judges on the curt outnumber Democratic-nominated ones 9-5. Senate Republicans want to keep it that way.

But rather than admit that they simply want to prevent a Democratic president from filling the D.C. Circuit’s three vacancies with fair and qualified judges, Republicans have devised a supposedly nonpartisan excuse for a filibuster: They claim that the D.C. Circuit already has enough —  if not too many —  judges and that adding more would be a waste of taxpayer money.

In fact, some Republicans have taken the issue even further and have accused President Obama of “court-packing” (a reference to Franklin D. Roosevelt’s attempts to expand the number of seats on the Supreme Court) simply because he is attempting to fill vacancies designated by Congress.

The problem with this argument is that it depends on the rest of us having a very short memory.

PFAW’s legislative team put together a memo [pdf] this week illustrating just how hypocritical the Republicans’ DC Circuit filibuster argument is. It turns out that when President Bush was nominating judges, Republicans pushed for the confirmation of judges to the very same D.C. Circuit seats that they are now saying don’t need to be filled – even though the court had a similar or even lower workload than it does today:

Republicans claim the DC Circuit’s caseload is too light to justify having more than 8 of its 11 seats filled. But it actually had a smaller caseload when Republicans worked to fill the 9th, 10th, and 11th seats with  George W. Bush’s nominees.

Now (Obama): 1,479 pending cases; GOP says 8 judges are enough

June 2005 (Bush): 1,313 pending cases; Brown & Griffith confirmed to 10th & 11th seats

May 2003 (Bush): 1,001 pending cases; Roberts confirmed to 9th seat

July 2003 (Bush): 941 pending cases; Cloture effort for Estrada for 10th seat, Brown & Kavanaugh nom’d for 10th & 11th seats

Sen. Grassley and his fellow Republicans prefer to define the caseload by case filings over a year, but  even under that system, Republicans pushed to fill the 9th, 10th, and 11th seats at a time when the DC Circuit’s caseload was lighter than it is today:

Now (Obama): 1,137 filings; GOP says 8 judges are enough

May 2003 (Bush): 1,077 filings; Roberts confirmed to 9th seat

July 2003 (Bush): 1,063 filings;Cloture effort for Estrada for 10th seat, Brown & Kavanaugh nom’d for 10th & 11th seats

Sen. Grassley tried a similar trick the last time a Democrat was in the White House. He held a subcommittee hearing in October of 1995 and pushed the idea that the DC Circuit should only have as few as 9 seats. Yet even under Grassley’s own definition, it had a much higher caseload than at any point during the Bush years.

1995 (Clinton): 1,625 filings; Grassley suggested 9 judges may be enough

June 2005 (Bush): 1,359 filings; Brown & Griffith confirmed to 10th & 11th seats

While Republicans successfully pushed to allow President Bush to fill the ninth, tenth, and eleventh seats on the D.C. Circuit, they are now accusing President Obama of “court-packing” for doing the same. Somehow, we don’t think this transparently partisan obstruction will help the GOP regain the trust that they lost from voters during the government shutdown.


D.C. Circuit, judicial nominations