Obama's Court Packing Plan

In his latest attempt to emasculate the Constitution, President Obama made the unprecedented move last week of nominating three reliable, Washington-centric liberals to the U.S. Circuit Court of Appeals for the District of Columbia, commonly known as the D.C. Circuit. 

Obama defied Republicans to block the nominations. “This is not about principled opposition,” said Obama. “This is about political obstruction. I recognize that neither party has a perfect track record here. Democrats weren’t completely blameless when I was in the Senate.” 

“But what’s happening now is unprecedented,” Obama complained. “For the good of the American people, it has to stop.” Obama’s henchmen let it be known that if Republicans try to block confirmation, the reliable Harry Reid would moved forward with the so-called Nuclear Option, blow up any resemblance of bi-partisanship, and confirm the three nominees with 51 Democrat votes.

Sources inside the Senate Judiciary Committee tell me that Obama’s defiant words will likely result in the defeat of his three nominees. Republican Senators, I am told, will not confirm any more judges to the D.C. Circuit unless a sitting judge takes senior status, retires, or dies. Otherwise, Republicans are nearly unanimous in their conviction to stop these nominees, and will likely be successful.

Why is Obama so adamant about confirming his picks for the D.C. Circuit, and why are Republicans so adamant about stopping them?

The D.C. Circuit is the linchpin in the advance of the Administrative State; it is the court where Obama’s end-runs around Congress and constitutional government will either be upheld or sent to the trash pile. Obama, not having a rubber-stamp Congress, is busy expanding federal power by regulations issued by independent agencies, cabinet departments, and executive orders. Challenges to such actions usually go directly to the D.C. Circuit, making a left-wing majority on that court a necessity if Obama hopes to make his leftward lurch survive.

According to one Republican Senator on the Judiciary Committee with whom I spoke, the die for opposing Obama’s nominees was cast during the Bush Administration when nominees Peter Keisler and Miguel Estrada were stopped by Democrats because the workload, they contended, did not warrant any more judges. The workload today is lower than it was then; besides, one new Obama judge for the court was unanimously confirmed several months ago. 

The D.C. Circuit now has eight full-time judges, evenly split between liberals and conservatives, and six senior judges, five of whom are Republican appointees. Their skepticism of Obama’s attitudes about the Constitution was demonstrated in several major cases in recent months that have blocked his the expansionist agenda, including: disallowing what the court found to be an unconstitutional attempt to circumvent the Senate with recess appointments to the National Labor Relations Board; throwing out the EPA’s unlawful Clean Air Act regulations that would have virtually shut down the coal industry; and requiring that the Securities and Exchange Commission consider cost benefit analyses in their rulings.

There is a long list of Obama regulations which will find their way into the federal court system over the next several years, and it is these three appointees, if they are confirmed by the Senate, who will help determine whether Constitutional brakes are applied or not. Included in the long list are: Obamacare regulations, control of the banking and financial industries by Dodd Frank, more EPA regulations, highway safety and emissions standards, campaign finance regulations, national security issues, and a host of others. 

In a word, much of the success or failure of the Obama agenda hinges on the D.C. Circuit Court of Appeals.

Liberals are deservedly concerned. New York Senator Chuck Schumer recently announced that if Republicans attempt to stop Obama’s picks for the court, “it will give those of us that want to change the rules and not allow 60 votes to dominate the Senate but require a talking-filibuster to prevail. We will fill up the D.C. circuit one way or another.”

The Senate won’t touch the nominations until it has completed work on the immigration reform bill now being considered. Then, if Harry Reid decides to go nuclear, all bets will be off for anything getting through the Senate until after the 2014 election. As was stated recently in The Atlantic, the nuclear option “would inevitably provoke a strong and sustained response from the minority, using the many tools available to them in the Senate to bollix up the works and bring the place to a halt.”

What Obama is up to is nothing short of court-packing – an argument he himself made, as a Senator, against the George W. Bush nominees. “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda,” said Republican Senator Chuck Grassley, the senior GOP member of the Senate Judiciary Committee.

Historically, the D.C. Circuit almost single-handedly legitimized and helped expand the administrative state. During the Kennedy, LBJ, and Nixon-Ford Administrations, when the alphabet-soup agencies were formed or expanded, regulation after regulation and executive order after executive order were scrutinized and given the go-ahead by liberal, Washington-centric judges appointed to do just that. 

As Congress increasingly delegated its constitutional authority to unaccountable independent agencies, giving them broad powers to regulate the economy, the environment, energy, traffic, or a thousand other things, the D.C. Circuit regularly added its stamp of approval. As only a small number of cases are reviewed by the Supreme Court, the D.C. Circuit often has the final say in such matters, with the result that it is probably accurately described as the second most important court in the country.

“These are no slouches,” Obama declared when he announced his nominations. “These are no hacks. These are incredibly accomplished lawyers.” He’s correct. They are all able, accomplished, and experienced lawyers, but what Obama did not say is that they are Washington-centric, Harvard educated, big-government liberals who will be reliable votes for the Administration.

The Obama agenda is at stake, and Democrats know it. Stopping the Obama court-packing plan, if successful, may be one of the GOP’s proudest moments.