Shorting the D.C. Circuit

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At least since the Reagan administration, Republicans have taken judicial nominations, especially to the federal circuit courts, much more seriously than Democrats have. As a result, Republican presidents have gotten relatively more nominees confirmed, and their nominees have been younger and more ideologically consistent than their Democratic counterparts. Yesterday, however, there was a sign that this could be changing. As the Prospect's Paul Waldman noted, Michael Shear of The New York Times reported that President Obama would be simultaneously nominating individuals for all three current vacancies on the D.C. Circuit. This move is clearly intended to make Republican obstructionism a major issue of Obama's second term. And while it's not clear how this bold advance will play out, under any scenario something good will come out of it.

As Waldman notes, for now the central Republican argument against the nominations is that Obama is trying to "pack the court." As Democratic Senator Sheldon Whitehouse pointed out, the argument is specious even by the standards of Republican talking points. The term "court packing" refers to FDR's proposal to add seats to the Supreme Court to give the president an opportunity to alter the ideological balance. (The plan failed, despite FDR's huge legislative majorities.) The ordinary presidential act of filling existing vacancies on the federal courts is not "court-packing" as the term has been understood for decades. And it's particularly farcical to apply the label to Obama, given that he was the first president in many decades to go a full term without getting a single nominee confirmed to the D.C. Circuit. Even after last week's unanimous confirmation of the very moderate Sri Srinivasan, Obama has filled only 25 percent of the vacancies on the D.C. Circuit that have existed since the beginning of his term. The best-case scenario, at least in the short run, is that the joint nominations strategy puts sufficient pressure on the Republican minority so that two or three of Obama's nominees get confirmed.

The consequences of conservative Republicans' domination of the D.C. Circuit have frequently been dire. The D.C. Circuit decision all but reading presidential recess appointment power out of the Constitution might be a key motivation in this new strategy. Going forward, the composition of D.C. Circuit— which hears many cases dealing with the regulatory powers federal agencies—is likely to be of increasing importance. As Jon Chait notes, "the outcome of the court fight will determine not only sundry political questions but quite possibly also Obama’s last shot to prevent catastrophic climate change." With the confirmation of Srinivasan, the active members of the court are now evenly split between Democratic and Republican nominees (although the retired judges who are sometimes called to hear cases are overwhelmingly Republican.) A Democratic majority on the Circuit would mean truly positive impact, even given the greater ideological moderation of the Democratic nominees.

However, it seems enormously unlikely that all of Obama's nominees will be confirmed, and it is entirely possible that none will be. It is true, as Waldman says, that (particularly assuming that Obama continues to appoint mainstream, highly-qualified judges) the Republican arguments in favor of filibustering the nominees will almost certainly be terrible. Unfortunately, the only people these arguments need to "convince" are the Republican senators making them. And the successful filibuster of Caitlin Halligan makes clear that as far as the Republican minority is concerned that "being nominated by a Democratic president" constitutes the "extraordinary circumstance" necessary to justify the filibuster of a judicial nominee.   

It is possible that the dramatic gesture of three simultaneous appointments will draw enough negative public attention to Republican obstructionism in the Senate to make it politically unsustainable in this case. But this must be considered unlikely. Judicial nominations—especially those below the Supreme Court level—are low-salience issues for the public, and it is difficult to generate political mobilization around procedural issues. It is unlikely that the trio of nominations will have enough impact on public opinion to change the political calculus of the Republicans.

The public is not the only potential audience, though. One effect of egregious Republican obstructionism of these nominees—combined with the persistent Republican unwillingness to confirm executive branch nominees—may further undermine political support for the filibuster within the Democratic Senate caucus. The fundamental problem is that the long-term interests of both the polity and the Democratic Party— i.e. severely curtailing or getting rid of that indefensible rule—clash with the immediate self-interest of individual senators, who are empowered by the Senate's various anti-majoritarian procedures. The only way of overcoming this dynamic is for a majority of Democratic senators to perceive the costs of maintaining the filibuster as no longer justifying the individual benefits. If the Republican behavior in opposing Obama's nominees is sufficiently egregious, there's an outside chance that there may be enough support for Reid to invoke the so-called "nuclear option," that is, a ruling that would make filibusters inapplicable to judicial and/or executive branch nominations. More likely, an escalation in the cycle of conflict would make it more likely that there would be majority support among Democrats for restricting use of the filibuster as the rules for the next term are created.

In Martin Scorsese's classic Raging Bull, Joey LaMotta explains to his prizefighter brother Jake the benefits of agreeing to fight a young up-and-comer: "If you win, you win. If you lose, you still win." The same is true of Obama's strategy for the D.C. Circuit. If he wins by getting one or more nominees confirmed it's a major win, and even if the Republicans are able to obstruct all three nominees this will have the potentially even greater benefit of putting the filibuster further on the road to oblivion.  

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