Harry Reid attempting to push through unnecessary court nominees

An important battle is brewing in the Senate that could send shockwaves through the United States’ judicial system. Senate Majority Leader Harry Reid (D-NV) is trying to push through three of President Barack Obama’s nominees to fill vacancies on the D.C. Circuit Court of Appeals.

While this issue hasn’t received a lot of attention as other political fights over Obamacare and NSA spying are currently raging in Washington, the D.C. Circuit Court of Appeals is one of the most influential courts in the country, holding the responsibility of reviewing regulations and rules written by federal agencies.

It’s also a stepping stone for nominees to the Supreme Court, as four current justices — Chief Justice John Roberts and Justices Ruth Bader Ginsberg, Clarence Thomas, and Antonin Scalia — began their judicial careers by serving on the D.C. Circuit.

Reid and Senate Democrats are trying to build pressure on Republicans to allow votes on the three nominees to the D.C. Circuit, labeling their opposition as “obstruction.”

“Republicans claim that filling the three remaining vacancies on the D.C. Circuit would amount to court packing. But I can’t think of anything more ridiculous,” said Reid from the Senate floor on Wednesday. “Circuit court nominees, including nominees for the D.C. Circuit, have waited seven times longer for confirmation under President Obama than they did under President Bush. It’s no mystery why we have a judicial vacancy crisis in this country.”

“Making nominations to vacant judgeships is not court-packing. It’s the President’s job,” Reid added.

It’s true that it’s the President’s job to fill court vacancies that may arise during his term in office. But there is absolutely not a “judicial vacancy crisis,” at least as it relates to the D.C. Circuit. In fact, this court is probably the most underworked in the country.

“The D.C. Circuit currently has eight active judges and six senior judges (who are semi-retired). Based on its caseload, the court does not need more judges at the present time,”wrote Sen. John Cornyn earlier this week at National Review. “For example: Between 2005 and 2013, its total number of written decisions per active judge declined by 27 percent, and the number of appeals filed with the court fell by 18 percent.”

“The D.C. Circuit has already taken four months off this year,” he added. “Meanwhile, other federal appellate courts genuinely are overburdened and do need more judges.”

The term “court-packing” bring reminders then-President Franklin D. Roosevelt’s attempt to increase the number of justices on the Supreme Court in 1937, a reaction to the a series of decisions that shot down some of the core parts of the New Deal.

Scott Lemieux of The American Prospect, a leftist publication, defended the push to confirm the nominees and decried conservatives’ complaints, writing that President Obama is “using his constitutional powers to nominate judges to fill vacancies in existing courts, and Senate majorities are exercising their power to confirm them.” Likewise,PolitiFact has rated “false” these claims about the current situation as it relates to the D.C. Circuit, noting that President Obama isn’t trying to expand the court.

But this is a distinction without a difference.

The D.C. Circuit has been a thorn in the side of President Obama, ruling against his administration on some big policy matters. For example, the court ruled in January that President Obama had acted outside of his constitutional authority when he made recess appointments to the National Labor Relations Board (NLRB).

The appointments are an attempt to add influence to an important court that could determine whether regulations and rules currently being written by federal agencies are constitutional, and there’s no getting around that. Reid said as much in August with a Nevada radio station.

“We’re focusing very intently on the D.C. Circuit,” said Reid, according to Talking Points Memo. “We need at least one more [seat filled]. There’s three vacancies. And that will switch the majority. So we’re working on it.”

Republicans agree that vacancies need to be filled, but they want the Senate to focus on overworked courts that need help. Unfortunately, Reid isn’t listening. He is threatening toend the filibuster for judicial nominations in light of an unsuccessful attempt yesterday to push through a nominee to the court, something he once vigorously opposed because it was a threat to minority rights.

It may not be a sexy political battle, but its one that conservatives and libertarians should keep in mind in states with competitive Senate races. Those races may well determine the ideology of the D.C. Circuit and bring an end to a tool to defeat bad nominees in the upper chamber of Congress.


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