The President’s announcement on Wednesday that he was nominating three judges to the Court of Appeals for the D.C. Circuit – as exceptional as a triple-nomination complete with a rose garden announcement may be – should come as no surprise. His agenda has been stymied repeatedly by that court, and so he is sinking to new levels of hypocrisy in an effort to neutralize its effectiveness.
The D.C. Circuit was the first to hold that President Obama’s attempt to circumvent the Senate confirmation process by making “recess appointments” when the Senate was not in recess both “eviscerate[d] the Constitution’s separation of powers” and “demolish[ed] checks and balances.” That court also struck down an EPA regulation that had no basis in the statutory text of the Clean Air Act, confirming that democratically-elected legislators, not governmental regulators, have authority to make law.
With the president under scrutiny for politicization of the IRS, along with thousands of regulations coming down the pipe in implementing Obamacare and Dodd-Frank, it’s no wonder he wants to grease the wheels of justice by putting some of his own judges on this key court.
But the President knows that the type of judges he wants will face an uphill confirmation battle. Witness Caitlin Halligan, his first nominee to the D.C. Circuit who ignited fierce opposition due to her extreme positions on issues ranging from Second Amendment rights and national security issues to same-sex marriage and abortion. After she withdrew her nomination, President Obama was forced to settle for the more moderate Sri Srinivasan – who won confirmation by a unanimous vote.
The president’s strategy is now to force the Senate’s hand in confirmations by manufacturing a judicial crisis. But his complaints about the D.C. Circuit vacancies are overtly political. At yesterday’s announcement ceremony, he lamented the three open seats on the D.C. Circuit and played up one seat on that court that has been vacant since 2005 when Chief Justice Roberts was elevated to the Supreme Court.
The only problem with his criticism is its blatant hypocrisy.
Obama was a senator when Chief Justice Roberts vacated that D.C. Circuit seat, as well as during the period when Senate Democrats kept Bush’s talented nominee to replace him, Peter Keisler, waiting for 900 days without ever letting his nomination out of committee. Miguel Estrada, another Bush nominee to the D.C. Circuit, was filibustered seven times by that same Senate, not despite his qualifications, but because of them. Since he was a legal rock star and Hispanic to boot, Democrats worried he was on the fast track to the Supreme Court.
Senator Obama didn’t just watch the political gamesmanship, he was part of it. In 2006, Obama joined an effort to filibuster Samuel Alito’s nomination to the Supreme Court, making him the only president in U.S. history to have attempted to filibuster a Justice’s confirmation. In addition to trying to block Justice Alito, Obama filibustered now-prominent judges William Pryor, Janice Rogers Brown, and Leslie Southwick. So when he complains that Republicans have “used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote,” remember that he was perfectly willing to resort to the same tactics when the shoe was on the other foot.
The president’s nomination of three judges to the D.C. Circuit, and his sudden change of heart about the filibuster, has nothing to do with his disinterested views about “the role of our courts.” If that were his concern, he would be working on filling the judicial vacancies that have risen to “emergency” status according to the Administrative Office of the U .S. Courts. But that list does not include the D.C. Circuit – arguably the least busy court in the nation – and the president hasn’t even submitted nominations for 75% of the vacancies rated “judicial emergencies.”
Instead of bullying the Senate to fill up seats where they will politically benefit him most, the President should be focusing on filling the vacancies causing real emergencies, with nominees who will focus on the law rather than advance a political agenda.
Carrie Severino is chief counsel to the Judicial Crisis Network.