Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.
Because of its location and the minuscule number of cases the Supreme Court entertains each year, the D.C. Circuit is the tribunal of last resort for a huge number of appeals that contest administrative decisions by federal agencies. Many of these cases involve national regulations governing things like air pollution, and can have dramatic effects on the health, safety, and well being of millions of people. Other cases, like Noel Canning, implicate fundamental issues of constitutional law and the federal government’s structure.
The D.C. Circuit’s importance partly explains the prolonged openings. Because the tribunal’s docket resembles the Supreme Court’s caseload and eight of the nine current Justices were appeals court judges, Republican and Democratic presidents have used the D.C. Circuit as a launching pad for numerous Supreme Court nominees. Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsberg served on the D.C. Circuit. This has motivated the party not controlling the presidency to scrutinize and obstruct D.C. Circuit nominees whose perspectives they oppose lest they be confirmed and later end up on the Supreme Court. Thus the Democratic Senate blocked President George H.W. Bush’s 1991 nomination of John Roberts, as Republicans did with Elena Kagan when Bill Clinton nominated her in 1999. Despite pushback, however, President George W. Bush confirmed four D.C. Circuit judges, including Roberts. Kagan was later confirmed to the Supreme Court in 2010.
Several other factors have contributed to the lack of Obama confirmations. The administration has been preoccupied with two wars and a protracted recession. It also decided—reasonably—to emphasize two Supreme Court vacancies and tribunals confronting judicial emergencies when addressing empty judgeships. When the president took office, the Fourth Circuit had six openings and the Second Circuit, four, so Obama stressed them and enjoyed success.
Obama did attempt to fill one D.C. Circuit vacancy. In September 2010, Obama nominated Caitlin Halligan, the Manhattan District Attorney’s general counsel, but Republicans prevented her floor vote by rejecting cloture in December 2011. Last June, Obama renominated Halligan and nominated Sri Srinivasan, the Principal Deputy Solicitor General, both of whom he renominated on January 3, 2013.
Notwithstanding Halligan’s excellent qualifications, GOP members opposed her. Some senators opposed cloture on Halligan because they mistakenly thought she would fill the court’s eleventh seat. However, she was renominated to the ninth seat, one of three vacancies on the eleven-judge court at the time, which is the salient statistic. Other senators opposed cloture because they asserted that her representation of clients on certain issues, such as those involving gun control, meant that she held those views and would vote accordingly as a judge.
Obama seemingly nominated Srinivasan because the president thinks that he is a consensus nominee. Srinivasan served as a law clerk for conservative Fourth Circuit Judge J. Harvie Wilkinson and Justice Sandra Day O’Connor and for a half decade in the Solicitor General’s Office in the administration of President George W. Bush. Despite their qualifications, the 112th Senate processed neither Halligan nor Srinivasan in 2012.
For his part, President Obama must urge Democratic and Republican senators to support the two exceptional nominees. The White House should contact individual senators and furnish comprehensive information regarding Halligan and Srinivasan. If Republicans persist in opposing Obama’s well-qualified nominees, Democrats can invoke several options. The president can more aggressively support his nominees publicly and privately. The majority party can swiftly process Halligan and Srinivasan and if Republicans resist, seek cloture by swaying five GOP members. Moreover, Obama could continue to nominate highly qualified nominees like the two already proposed. He might also consider prospects whom Republicans may deem more acceptable. Obama might invoke his bully pulpit to press for swift consideration and yes or no votes, take the question to the public or even make it an election issue in 2014. As a last resort, he may appoint nominees in recess, although the legal and political complications that attend judicial recess appointments, even before issuance of the Noel Canning opinion, had made rare their use by modern presidents. Finally, the administration must identify and proffer two other superb D.C. Circuit nominees, who should received expeditious Senate review.
President Obama must speedily nominate and enthusiastically support, and senators promptly evaluate, stellar D.C. Circuit nominees, lest the incessant confirmation wars prevent the second most important court from dispensing justice.