The filibuster fight over the mini-Supreme Court

Brad Plummer at Wonkblog yesterday attributed the recent execution of the nuclear option that altered the filibuster in the Senate to the happenings of the DC Circuit.  Aside from the fact that the DC Circuit  is regarded by Court watchers as a stepping stone to the high Court, Plummer points out another interesting feature of the DC Circuit, namely it's particular caseload that is heavy with administrative cases.  The DC Circuit that is among the U.S. Courts of Appeals, described by some as the least known federal courts, may well be the mini-Supreme Court given this caseload and not just because of its record of sending the most nominees to the Supreme Court.

Plummer notes the following about the DC Circuit:

The D.C. Circuit is surprisingly powerful — not least because it rules on decisions made by federal administrative agencies. If people want to challenge various federal regulations in court, the cases often end up here. It's "a court with special responsibility to review legal challenges to the conduct of the national government," explained Supreme Court Chief Justice John G. Roberts, who served on the D.C. Circuit court until 2005.

Plummer adds that the DC Circuit is likely to oversee many cases on environmental policy and final regulation in the years to come.

The fact that the U.S. Courts of Appeals, including the DC Circuit, must adjudicate all cases appealed to it, while only the Supreme Court has the luxury of picking and choosing its cases has meant that the Courts of Appeals have become significant policy makers in their own right. While it is true that any decision the Supreme Court renders binds the entire nation, the high Court's caseload of about 100 cases per term means effectively that large numbers of Courts of Appeals decision making on huge swaths of law (thousands of cases per circuit) are left un-commented upon by the Supreme Court.

Add to that situation the development of a more and more elaborate and sprawling bureaucracies and you have the DC Circuit now playing a very important role in governance indeed. This situation is due to the messiness of the legislative process and sometimes the need for compromise means legislation is written in a vague manner. That vague language leaves implementation and interpretation up to sprawling bureaucracies and their staff, who are themselves not directly elected by the people. Increasingly, in many areas of administrative law, one sees government agencies themselves are driving policy changes from within and without going through the tough vetting system of the formal legislative process. What these administrative agencies from the Social Security Administration to the Veterans Administration and the Department of Homeland Security call bureaucratic rule changes end up having the force of legislation as citizens experience these changes in policy.

Additionally, the Executive branch is also turning to policymaking via rule changes.  In the present situation of party polarization and administrative gridlock, it is even more likely that a President will seek to make rules administratively instead of trying to run the gauntlet of the formal legislative process. As AP News reported a few days ago, "Obama is relying more often on making relatively minor administrative changes to America’s complicated immigration system, as the likelihood dims that Congress will overhaul the law." And as this trend continues, the DC Circuit will be at the center, providing the Third Branch check on these bureaucratic rule changes that have the effect of law. The DC Circuit's significance then is far greater than as a stepping stone to the Supreme Court.

Politics on the U.S. Courts of Appeals: Unpacking the DC Circuit and Obama tries a blitz

Franklin Delano Roosevelt's "Court packing " scheme in which he tried to add members to the Supreme Court, "for every justice over the age of 70" is well known.  There, in an overtly partisan move, FDR grew tired of the "nine old men with old ideas" who kept invalidating his New Deal legislation and sought to expand the Court's size and by adding to it justices who would be sympathetic to his legislation.

That sort of overtly politically move has been more rare at the federal courts in contemporary times and today takes the form of of delay and blockage of the President's (of both parties) picks for the federal court during Senate confirmation hearings and floor debates, as candidates that the opposition party finds objectionable are "Borked".  Both parties of guilty of this tactic and Obama is now facing the recalcitrance of the GOP who have blocked several of his nominees to the DC Circuit, a special circuit given the number of judges that circuit has elevated to the Supreme Court.  The Senate has also blocked others of Obama's nominees to the federal courts.

Now comes news that Senator Chuck Grassley (R-IA) has a plan to increase court "efficency" on the DC circuit.  Grassley notes the lower caseload of the DC circuit compared to other U.S. Courts of Appeals and says the number of judges on that court should be reduced accordingly.  A NYT editorial published yesterday notes the special nature of the DC circuit.  It notes that the Chief Justice himself has noted that it is not the number of cases on that docket that require 11 judges; it's the difficulty and complexity of those cases.  Grassley's court efficiency plan is a transparent attempt to "unpack" one of the most powerful Court of Appeals in the hopes of reducing Obama's influence to appoint judges there who later may head to the Supreme Court.

Meanwhile, tired of having his nominees to the DC Circuit shot down one by one like sitting ducks, Obama has decided that this morning, he will attempt the equivalent of a blitz and launch three nominees to the DC Circuit all at once.  He dares the Republican Senators to reject all of them and believes he will win the PR battle if they are.

A new judge, the first South Asian American in the U.S. Courts of Appeals, joins the DC circuit after 7 years

Sri Srinivasan, the first South Asian American to be picked for the U.S. Courts of Appeals, has been confirmed to the DC circuit.  Previously, I have blogged about the politics of judicial confirmations in general and about Obama's slow pace in particular.  Srinivasan is the first new judge to be confirmed to the DC circuit in 7 years.  He is also the first South Asian American to serve on a U.S. Court of Appeals. The DC circuit he has been appointed to is especially symbolic and important because it is the circuit that has sent the most judges on to the Supreme Court.  In fact Srinivasan is filling the seat on the DC circuit vacated by John Roberts' elevation to the Supreme Court.

While it is cause for celebration for Obama that Srinivasan was finally confirmed only after nearly a year--and he had no formal opposition, it is also cause for concern that there are three other vacancies still remaining on this important Court of Appeals.  Obama has been slow to appoint nominees to the federal bench and he needs to speed it up before his second term ends since judicial appointments are but one way a president can make sure his influence is felt long after he has left office.

Srinivasan's confirmation to the DC circuit puts him on the fast track to the Supreme Court.  Recall that John Roberts was on the DC Circuit for a mere two years before he was picked to be Chief Justice of the Supreme Court.

What Obama should do about the slow pace in filling political appointee positions

In today's Wonkbook, Ezra Klein and Evan Soltas report on the slow pace the Obama White House is filling many politically appointed positions in the federal bureacracy.  Although our nation passed a  civil service reform law in 1833 that required government employees to be selected by merit rather than patronage, usually via their performance on a civil service exam, at the highest levels in government bureaucracy, there remains a patronage system. Klein and Soltas's article notes that while high profile cabinet level positions are being filled, many second tier appointee positions in multiple agencies are still vacant:

"[A]bout a quarter of the top jobs at the State Department are empty. The Department of Homeland Security is missing its top cybersecurity appointees. The IRS hasn’t had a director since November. The Commerce Department doesn’t have a chief economist. “’I don’t think it’s ever been this bad,’ said Representative Frank R. Wolf, Republican of Virginia, who recently wrote a letter urging Mr. Obama to act swiftly to fill top vacancies.”

Klein and Soltas were talking about political appointees in the bureaucracy, but another huge class of presidential appointees that remain vacant are within the federal judiciary.  David Savage of the LA Times wrote that, "When the 112th Congress adjourned last week [December 2012], the Senate had approved 175 of Obama's judges. By comparison, Bush had 206 judges approved in his first term, and President Clinton had 204 judges confirmed during his first four years." With regard to Obama's first term record on judicial appointments,, Jeffery Toobin has said, "Judicial appointments represent one of the great missed opportunities of the Obama Presidency." 

What's going on?  I agree with Klein and and Soltas that Obama and Republicans share the blame for this sorry state. Some of the blame is structural.  With presidential nominees that require Senate confirmation, the Republicans have made it so that nominees must pass a 60 vote threshold, not a simple majority of 51. 

But Klein, Soltas and Toobin also blame the Administration, which has been slow to put forth names of nominees because of their own long, grueling vetting process that Klein and Soltas note, “People who have gone through the vetting in Mr. Obama’s White House describe a grueling process, lasting weeks or months, in which lawyers and political operatives search for anything that might hint at scandal.” Toobin says the following about the vacant judicial posts,  "In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed."  But he adds, "But, since the 2010 midterm elections, Republicans have been at fault, almost entirely."

The Republicans are wrong to foot drag and block any candidate they don't like.  But their behavior is surely payback for many years of the same treatment by Democrats.  The Obama Administration though is being a little ridiculous by scrutinizing for months every nominee's life for anything that could cause scandal.  At the age of his appointees, presumably seasoned veterans of their fields, virtually everyone has some baggage, you just want to avoid the man or woman with the full Samsonite set.  Why not flood the process with a bunch of qualified appointees for every vacant spot, and let the Republicans sort through them?  For example, instead of nominating one person to the DC circuit at a time, send four nominees at once since there are four vacancies on that circuit. Some are bound to get through instead of Obama's insistence on picking and choosing only the "perfect" candidates, which allows the Republicans to concentrate their fire on one at a time.

Who are the U.S. Courts of Appeals?

Lately, there has been a number of stories about unsuccessful Obama attempts to appoint his choice of judges to the U.S. Courts of Appeals. Charlie Savage has criticized Obama (and I agree) that Obama has simply not made judicial appointments a priority.  First, in 2011, Goodwin Liu, a UC Berkeley law professor withdrew his nomination to the Ninth Circuit after Republicans in the Senate successfully filibustered him, the only filibuster since George W. Bush's first term.  The objection was Liu was too liberal and that some future Democratic president might put him on the Supreme Court later.

The second casualty of Senate gridlock was Caitlan Halligan, a lawyer from New York who was to be appointed to the DC Circuit, whom the Republicans in the Senate successfully filibustered not once, but twice.  We shall see what happens to Sri Srinavasan.  The use of the filibuster to block judicial nominations is a new tactic, trotted out really since George W. Bush's administration.  One would be naive to think the Democrats will also resort to this tactic when they are in the minority.  But the deployment of the filibuster has meant that neither Liu nor Halligan ever got an up or down vote in the Senate. 

None of these battles are over Supreme Court nominations. But what are these courts that virtually no one except court insiders have heard of? Here they are.  The U.S. Courts of Appeals are the level of the federal courts right below the Supreme Court.  As you can see from the map, their jurisdiction conforms to state boundaries.  Unlike the Supreme Court, they do not have the luxury of certiorari, meaning they cannot pick and choose what cases to hear like the Supreme Court; they must adjudicate all cases properly appealed to them.  Their rulings are only valid in their jurisdictions, not the whole country like the Supreme Court's rulings. 

Take a good look--effectively these are the courts of last resort for most people since the Supreme Court only adjudicates 80 or so cases each year among the 7,000+ appealed to it. If the Supreme Court does not grant your case certiorari or agree to hear the case, the decision of the last court stands; often that is one of the U.S. Courts of Appeals.

There are 11 circuits plus the Federal Circuit and the DC Circuit.  These represent the battlegrounds now for judicial nominations.

The next possible Obama Supreme Court appointment

Jeffery Toobin claims that round one of the the next Supreme Court confirmation battle is in fact going on right now, in the U.S. Court of Appeals for the DC Circuit.   It didn't used to be this way.  Before Robert Bork's infamous Borking, federal judicial nominations were not so contentious.  I blogged before about the liberals winning the Bork battle but in the end, losing the judicial appointment war now that its fair game to attack a nominee not for her qualifications and credentials, but because you just disagree with their politics. 

Now the judicial appointment fights have spilled over into Tbe U.S. Courts of Appeals, which I argued in my book The Immigration Battle in American Courts,  have become policy makers in their own right due to the sheer number of cases that they adjudicate and the comparatively miniscule number the Supreme Court hears.  Toobin and others have reported that Obama is not getting very far with filling vacancies on the federal judiciary.  Yes, of course the President is juggling many other pressing problems, gun control, immigration, the economy, but it is a shame that he is not pushing much more aggressively to fill the seats because given life tenure for federal judges, judicial appointments are one way a president can leave his mark on the political world long after she has left office.

Politicized judicial nominations is the new normal

When liberals cheered because they defeated Robert Bork's nomination to the Supreme Court in 1987, they did not realize they had won the battle but were going to be losing the judicial nomination war to come.  Robert Bork's contentious and ultimately unsuccessful confirmation battle marked the first time that a judicial nominee was attacked for his constitutional philosophy.  In Bork's case it was his originalism or strict constructionism which is a theory that says when in doubt about constitutional meaning, repair to the framer's intent or the original meaning and understanding of the founding generation. 

Bork's other legacy though was set by how his confirmation hearing went down.  Ever since Bork, it became fair game to attack a judicial nominee for political reasons if you disagreed with his/her judicial philosophy.  This tactic became known as "borking".  Prior to Bork, virtually all of a president's nominees to the federal bench were confirmed without incident.  As this interactive graphic from USA Today shows, even the staunch conservative Antonin Scalia was confirmed one year before Bork by a vote of 98-0 in the U.S. Senate. Those days are long gone.

These ideological and partisan confirmation battles have now spilled over to the U.S. Courts of Appeals, particularly the DC Circuit, seen as a stepping stone to the Supreme Court given the disproportionate number of judges from that circuit that have been elevated to the High Court.  This week, Charlie Savage and Raymond Hernandez reported in the NYT that the Republicans had filibustered Caitlan Haligan's nomination to the DC Circuit for a second time even though there are 4 vacancies on that important circuit. 

I should note that until 6 years ago, filibustering a judicial nominee never happened.  But it was also 6 years ago that a "Gang of 14" moderate senators laid out criteria for when a judicial nominee could be filibustered. The standard they agreed to was only in "extraordinary situations."  Haligan's filibuster, over her alleged "extreme" views on guns, signals the death of that Gang of 14 agreement and the return to just plain old partisan and political objection to a nominee's views. 

This development is troubling given that the number of judicial appointments a president makes to the federal bench.  Although public attention is only focused on Supreme Court nominees, in actuality recent presidents have appointed approximately 30 U.S. Courts of Appeals judges and between 127-175 U.S. District Court judges.  Given that the Constitution provides life tenure for all federal judges, not just the 9 at the Supreme Court, judicial appointments are a way a president can make her mark on the political system long after her term ends.  This prospect is called into question now that judicial nominations are subject to the same political quagmire as any other form of politics including the sequester and debt ceiling negotiations.  Borking Bork, was it worth it to open that Pandora's box?