This column by ACRU Senior Legal Analyst Ken Klukowski was published May 29, 2013 on Breitbart.com.
President Barack Obama is finalizing an aggressive strategy to pack a court. It’s not the Supreme Court; it’s the U.S. Court of Appeals for the District of Columbia Circuit. Whether Obama’s agenda succeeds or fails turns on whether he remakes that court in his image, and Republicans are preparing for battle.
Last week, Breitbart News reported that Sri Srinivasan had been unanimously confirmed as a judge on the D.C. Circuit, and that half the justices on the U.S. Supreme Court came from that court. There are eleven judgeships on the D.C. Circuit, three of which are still vacant.
Now the New York Times is reporting that Obama’s White House is working with Senate Majority Leader Harry Reid (D-NV) to invoke the “nuclear option” first discussed almost a decade ago, changing longstanding Senate rules to say that judicial nominations cannot be filibustered. As such, nominations would be confirmed with a simple majority of 51 senators (or 50 plus Vice President Joe Biden as a tiebreaker) instead of 60 votes to invoke cloture to end debate and proceed to a final vote.
The plan is for Sen. Reid to raise a point of order that further debate on the nomination is “dilatory and out of order,” and ask the president of the Senate (Vice President Biden) for a ruling. The Senate parliamentarian would likely advise Biden that Reid is wrong, but Biden would overrule the parliamentarian in Reid’s favor, saying that the Senate must proceed to an immediate simple-majority vote.
At this point any Republican may object and appeal the ruling of the chair. But a simple majority of 51 votes would affirm Biden’s ruling. If Reid can keep 50 of his 55 caucus members in line (plus Biden as tiebreaker), he can forever change the way the U.S. Senate works.
Senate sources confirm to Breitbart News that the NYT story is accurate; Obama is reportedly planning three rapid-fire nominations for the remaining D.C. Circuit seats and expecting Reid and the Democrats to invoke this nuclear option to quickly confirm them.
Of the eight judges currently on the D.C. Circuit, four are Republican appointees and four were appointed by Democrats. There are also six senior judges–a semi-retired status where they still hear some cases–a majority of which are conservative. Adding three Obama nominees would strongly tilt the court to the left.
The reason there are so many vacancies on this important court is because Democrats filibustered President George W. Bush’s nominees for years. Three of those nominees–Janice Rogers Brown, Brett Kavanaugh, and Thomas Griffith–were eventually confirmed when Republicans picked up Senate seats in 2004. Others, most notably Miguel Estrada and Peter Keisler, never got the vote they deserved.
The reason Obama is willing to go to such extreme lengths is that the D.C. Circuit will determine how much of Obama’s agenda survives. Under the Administrative Procedure Act, whenever an administrative agency makes a new regulation or issues a ruling, appeals on those executive actions typically go to the D.C. Circuit.
A perfect example was the D.C. Circuit recently holding Obama’s recess appointments to the National Labor Relations Board (NLRB) unconstitutional. This invalidated hundreds of NLRB rulings and has legally shut down that agency.
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.