President Obama is now trying to get two new judges on America’s second-highest court. Today Obama renominated Caitlin Halligan, who was filibustered last year, and Deputy Solicitor General Sri Srinivasan.
The U.S. Court of Appeals for the District of Columbia Circuit (called the D.C. Circuit for short) is the most important court in the country aside from the Supreme Court. The United States is geographically divided into twelve federal circuit courts of appeals. Although officially equal in authority, the reality is that many of the most important federal cases in the country are filed in the nation’s capital, so on appeal they are decided by the D.C. Circuit. It also has exclusive jurisdiction to hear appeals from government agency decisions under the Administrative Procedure Act and several other important areas of law.
And it’s usually a stepping stone to the Supreme Court. Although justices can come from being a judge on any federal appeals court (there’s about 180 circuit judgeships right now), or any of the 50 state supreme courts, or occasionally other jobs (Elena Kagan was never a judge, and instead was Harvard Law School dean then U.S. solicitor general), of the nine justices on the Supreme Court, four of them–almost half–came from this one court of the D.C. Circuit. The former D.C. Circuit judges are Roberts, Scalia, Thomas, and Ginsburg.
So this court is critically important, and its judges often go on to serve on our highest court. Yet in the four year of his presidency, Obama has not placed a single judge on this court.
Three of the D.C. Circuit’s seats are vacant. Obama had nominated only one person to fill one of those seats, Calligan. Her nomination was filibustered 54-45. Today the president is doubling down, sending Calligan back to the Senate a second time and also nominating Srinivasan.
Both of these lawyers have extremely impressive pedigrees. If confirmed, either one could be nominated to the Supreme Court if Obama wins a second term. Especially Srinivasan, who despite being a liberal has shades of bipartisanship in his resume, since he clerked for two Republican-appointed judges.
Neither of these judges are conservatives. One is J. Harvie Wilkinson on the Fourth Circuit, who believes that the Second Amendment doesn’t secure any right for private citizens to own guns, and therefore that D.C. v. Heller was wrongly decided because government can ban all guns. Wilkinson also recently wrote a shocking opinion where he said prayers at public events violate the Establishment Clause if they mention “Jesus” too many times.
The other is Justice Sandra Day O’Connor. Nothing needs to be said on that one.
So with time running out on his first term and after waiting for years, suddenly Obama is trying to get nominees on the D.C. Circuit. Commentators are pointing out that under normal procedures, it’s too late to get these judges confirmed before the next Inauguration.
But don’t bet on it. If Obama loses, then don’t put it past Sen. Harry Reid (D-NV), Chuck Schumer, and Pat Leahy to break with tradition and even subvert the rules of the Senate to confirm a whole slate of last-minute judicial nominees.
Keep an eye on the courts.