Flanked by his nominees for seats on the D.C. Circuit Court, President Obama’s stern words about Republican obstructionism didn’t dampen the celebratory mood evident in the Rose Garden among the assembled guests, including Democratic lawmakers, liberal advocacy groups, and even embattled Attorney General Eric Holder, looking relaxed as he chatted with well-wishers on a sunny Tuesday morning. This is a showdown that Democrats have wanted for a long time, and when Obama said his efforts to fill three vacancies on the D.C. Circuit are not “court-packing,” as some Republicans allege, laughter rippled through the crowd even as the nominees kept their poker faces in an exemplary display of judicial temperament.
The phrase invokes FDR’s failed attempt to add more judges to a Supreme Court of aged men who were striking down his New Deal legislation. “It’s a classic case of neo-Orwellian Republican language distortion,” says Matt Bennett with Third Way, a moderate Democratic group. “It’s more than a stretch; it’s an outright untruth.”
Still, it’s a bell ringer with partisans on both sides, bolstering the narrative among Republicans that Obama is power hungry and hell-bent on packing the court with liberals, and the narrative among Democrats that Republicans will stop at nothing to block the president’s agenda.
Iowa Republican Sen. Chuck Grassley is sponsoring legislation to strip the D.C. court of the three seats Obama is attempting to fill. He says they are unneeded, and he would shift two to other circuits with a higher caseload and eliminate the third.
“Forget about FDR,” protests Grassley in a phone interview with The Daily Beast. He took great umbrage with the idea that what he’s doing is political, pointing out that his concern about a bloated D.C. Circuit Court predate Obama. “I agreed with Bush 90 percent of the time, and I took away a seat from him. Just because I happen to disagree with Obama most of the time doesn’t have anything to do with it.” Grassley says he wants to save the taxpayers money, and that Obama has plenty of other vacancies he can fill without turning the D.C. Circuit Court into a political crisis.
There is a principled way to alter the size of a circuit court, and Grassley was part of a Senate effort in 2007 to reduce the D.C. court from 12 to its current 11 seats, shifting one seat to the Ninth Circuit Court in California with Democrat Dianne Feinstein’s backing. Lawmakers made the change effective after the next election and without knowing which party would have the White House. They acted upon the recommendation of the Judicial Conference that oversees U.S. judges. And most significantly, the legislation was bipartisan.
In the current situation, however, the Judicial Conference has not called for any change in the number of seats allocated. “It’s hard for Republicans with a straight face to say they don’t need to fill these seats” when they voted to fill the ninth, 10th, and 11th seats on the court when President Bush was in the White House, says Nan Aron, president of the liberal Alliance for Justice. One of the seats Obama is attempting to fill belonged to John Roberts before Bush tapped him for the Supreme Court. It's been vacant since 2005, the result of Democratic and Republican obstruction.
Russell Wheeler, a judicial expert at the Brookings Institution, calls the GOP attempt to characterize Obama’s appointments as court packing “silly on its face,” which is why it elicited laughter in the Rose Garden. But Grassley's bill reflect the GOP's determination to curtail Obama appointees on the D.C. Circuit Court, which is recognized as second in national influence to the Supreme Court. Every Republican on the Judiciary Committee has signed on as a cosponsor with Grassley along with, somewhat surprisingly, Maine Republican Susan Collins, who Democrats speculate is under pressure to prove her conservative bona fides in anticipation of a potential primary challenge.
The three nominees—District Court Judge Robert Leon Wilkins, Georgetown Law Professor Cornelia Pillard, and Attorney Patricia Ann Millett—are highly qualified and noncontroversial choices. The Senate confirmed Wilkins unanimously in 2010; Pillard has argued landmark cases before the Supreme Court, and Millett served in both the Clinton and Bush administrations.
The fight is not about the nominees or their credentials; they are pawns in a larger political game: GOP efforts to draw a line in the sand on the D.C. court, and to cut its size before Obama can add more Democrats to it. Of the eight sitting judges, four are Republican appointees. The four Democratic appointees include Sri Srinivasan, unanimously confirmed last month after Republicans had held up an earlier Obama nominee, Caitlin Halligan, for two and a half years.
For Obama, this is personal; it’s a fight about his agenda. “This court is pretty conservative, no doubt about it, and it’s a roadblock for Obama regularly,” says Wheeler. What really got Obama’s attention was early this year when the court went against 150 years of history with an extremely broad decision declaring Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau and appointments to the National Labor Relations Board unconstitutional. “He faces a court that is hostile to his agenda and willing to overturn it every opportunity they get,” says Aron, who with other liberal advocates has pressed Obama for some time to get more aggressive with his judicial nominations.
Grassley bases his case for downsizing the D.C. Circuit Court on its workload of only 108 cases per judge, a number that Wheeler says is accurate but misleading because it doesn’t take into account the nature of the cases before the court, which tend to involve national security and regulatory reform and are far more time- and labor-intensive than the contract disputes and prisoner appeals that make up the bulk of work in other circuits.
“There’s a lot of hypocrisy with this particular proposal,” says Adam Skaggs, senior counsel at the Brennan Center. He notes that Grassley was among those who voted unanimously to confirm Iowa public defender Jane Kelly to the Eighth Circuit Court, which by some metrics has the lowest workload of any of the circuits. “You can search long and hard for consistency around the stated justifications he’s (Grassley) put forth, and you’re not going to find it,” says Skaggs, who calls what Grassley is doing good, old-fashioned politics dressed up as court packing.
“It’s either the height of political cynicism or he’s disingenuous. It just doesn’t pass the laugh test.”