“Chuck Grassley’s Pretext”: Why The GOP Is So Obsessed With Three Little Judges
It’s beginning to feel a bit like 1937 in Washington this week as the White House and Senate Republicans hurl allegations of “court-packing” up and down Pennsylvania Avenue at one another. The what — Republican obstruction of Obama’s nominees to fill three vacant seats on the powerful D.C. Circuit Court of Appeals — has been widely and well covered elsewhere. What bears further explanation is the why. It goes without saying that the GOP has an interest in blocking Obama’s nominees in general; the fewer judges the president appoints, the less liberal the courts overall. But why do they care so much about these three particular nominees — who haven’t even been named yet — that they’re willing to risk triggering a “nuclear war” on filibuster reform while also trying to change the basic makeup of the court.
First, there’s the numbers. Right now, Republican appointees have an effective 9-5 majority on the D.C. Court. There are only 11 “active” seats, but another six judges serve as a sort of auxiliary corps in a semi-retirement status where they participate in cases as needed. With three vacancies on the active bench, these “senior” judges are needed often. Of all the judges, three were appointed by George W. Bush, two by George H.W. Bush, and four by Ronald Reagan, compared to just three by Bill Clinton, and one by Jimmy Carter. Until last week, when the Senate finally confirmed Sri Srinivasan, Obama had made zero successful appointments in over four years, despite the vacancies, thanks to GOP obstruction.
“That’s what this is about. It’s that the court is already packed in favor of Republican judges,” Judith Schaeffer, the vice president of the Constitutional Accountability Center, told Salon.
Second, the stakes couldn’t be higher. With near-exclusive purview over federal government action, the D.C. Circuit will be a critical battleground in legal challenges against everything from the Affordable Care Act to new EPA regulations to curb greenhouse gas emissions, not to mention labor policy, gun safety regulations, Wall Street reform, national security issues, campaign finance, voting rights, and much more. With Congress deadlocked, executive action has become an increasingly important tool for the Obama White House, and the D.C. Circuit is where people trying to stop those reforms will mount their fights. Already, the Republican majority on the court has rolled back a major EPA air pollution rule, curbed Obama’s recess appointment powers and hamstrung the National Labor Relations Board.
Outside of the House of Representatives, the court is one of the most important roadblocks to Obama’s agenda. Obviously, Republicans would like to keep it that way.
But now, the White House is reportedly planning to push through three nominations simultaneously in an effort to overcome GOP filibusters. Republicans have filibustered plenty of nominees, but they pounced on this plan with unusual vigor and a unified message. Sen. Chuck Grassley, the Judiciary Committee’s top Republican, called this scheme “court packing.” Senate Minority Leader Mitch McConnell said the White House is trying “to pack the D.C. Circuit with appointees.” Utah Sen. Mike Lee, a constitutional lawyer hailed by conservatives for his legal smarts, also invoked the term.
It’s a little disturbing to think that three of the Senate’s top Republicans on judicial matters have no idea what court packing is, but that’s what we’re lead to believe if we assume they’re being honest in their charges. FDR tried to “pack” the Supreme Court in 1937 by dramatically expanding its size, so he could appoint more justices who agreed with him. Court packing involves trying to change the rules of the game in your favor. Obama is following the rules set forth by the Constitution and Congress by aiming to fill three already vacant seats. To accuse Obama of court packing is plainly ridiculous.
Now, wouldn’t it be ironic if Grassley and his colleagues were in fact the ones who wanted to change the rules of the game? As it turns out, they do. Grassley wants to eliminate the three vacant seats from the court entirely, thus cementing the current Republican majority indefinitely. This is the plan that has led the White House to turn the “court packing” allegation back on Republicans, as White House senior adviser Dan Pfeiffer did in a blog post today. “[O]n the merits, Senator Grassley’s ‘court unpacking proposal’ fails to make any sense,” the Obama aide wrote.
Grassley’s argument — or pretext, depending on where you sit on the political spectrum — is that the D.C. Circuit is underworked, because it sees fewer cases per judge than other appellate courts. Eliminating each judgeship would save $1 million per judge per year. Million with an “m” — a pretty puny amount of money when it comes to government.
Critics, meanwhile, see Grassley’s plan as little more “pure partisan hypocrisy,” as Schaeffer said, predicated on an erroneous assumption about the court’s workload. Currently, the D.C. Circuit has 120 pending cases per authorized judgeship, which Grassley says is too few. But under George W. Bush, Grassley voted to confirm two judges when the court had just 109 cases per judge.
And everyone agrees the cases the D.C. Circuit deals with are far more complicated than those seen on other circuits, so you can’t really compare the numbers. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” wrote Pat Wald, who was the chief judge on the D.C. Court of Appeals, in the Washington Post.
You don’t have to be a federal courts scholar to see the stakes here, or the politics at play, but they’re probably hoping only scholars will pay attention.
By: Alex Seitz-Wald, Salon, May 30, 2013
“A Fight Worth Having”: A Strategy On Judicial Nominees Takes Shape
For nearly five years, the United States Court of Appeals for the District of Columbia Circuit — aka, the D.C. Circuit — has had seven sitting judges hearing cases, four from judges appointed by Republican presidents and three from Democratic presidents. Last week, President Obama finally saw one of his nominees confirmed to this bench, bringing some parity to the appeals court.
There are, however, three remaining vacancies, which Senate Republicans would love to keep vacant indefinitely. What does the White House plan to do about it? A plan has apparently come together.
President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to an important federal court, a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules. […]
White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.
For those hoping for a more progressive federal judiciary, there’s a lot to like in this plan. Indeed, it’s arguably overdue.
It’s a pretty straightforward exercise — Obama has to nominate jurists to fill these vacancies, and he’s apparently focused on three excellent, mainstream choices, who would ordinarily garner broad support. From the White House’s perspective, if Senate Republicans act responsibly, great — the nominees will be confirmed, the D.C. Circuit will be at full strength, and the bench will be less conservative.
If Senate Republicans act irresponsibly and block these nominees out of partisan spite, Democrats will have even more incentive to pursue the “nuclear option” and end this style of obstructionism altogether.
And just to reiterate a relevant detail, filling judicial vacancies is important everywhere, but the D.C. Circuit is of particular significance — not only is it often a proving ground for future Supreme Court justices, but the D.C. Circuit regularly hears regulatory challenges to the Obama administration’s agenda. Indeed, as the NYT report noted, this bench “has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.”
With this in mind, it’s a fight worth watching.
By: Steve Benen, The Maddow Blog, May 28, 2013
“What Packing The Court Means”: Chuck Grassley Has No Idea What He’s Talking About
The D.C. Circuit Court of Appeals, the nation’s second highest federal bench, has 11 seats. For the last five years, four of those seats have been vacant, which has not only put a strain on the court, but left Republican appointees as the clear majority, pushing the bench to the right.
And so, yesterday offered something of a breakthrough when the Senate unanimously approved Sri Srinivasan, President Obama’s first confirmed judge to the D.C. Circuit. That leaves three vacancies on the bench, and the White House intends to send nominees for those slots to the Senate soon.
For Sen. Chuck Grassley (R-Iowa), that’s a problem. Indeed, Dylan Matthews noted yesterday that Grassley believes rascally Democrats and the Obama administration are trying to “pack the court” through a “court-packing” scheme. Grassley was reading carefully from a prepared text, suggesting the Iowa Republican was quite serious about the argument — he repeated it five times.
It fell to Sen. Sheldon Whitehouse (D-R.I.), Grassley’s colleague on the Senate Judiciary Committee, to gently explain that Grassley has no idea what he’s talking about. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, but not seriously pursued.
What we’re talking about in 2013 is very different. There’s a vacancy on the federal bench; the president chooses a nominee to fill that vacancy; the Senate Judiciary Committee scrutinizes that nominee and sends him or her to the floor; and then the Senate’s full membership has an opportunity to vote “yea” or “nay” on confirmation.
Chuck Grassley sees this as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance.
Postscript: I should note that if Senate Republicans reclaim the majority after the 2014 midterms, Grassley would become chairman of the Senate Judiciary Committee, despite his apparent confusion on these issues.
By: Steve Benen, The Maddow Blog, May 24, 2013
“Court Packing Scheme”: GOP Plots To Hollow Out The Federal Courts
The high-water mark of FDR’s power came when he tried to give himself the power to appoint six new Supreme Court justices, which opponents decried as an underhanded scheme to rig the court with justices who favored his agenda.
Now, 75 years later, Republicans are trying to do the same thing, but in reverse. Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee and thus the most important member of his party on such issues, introduced legislation yesterday that seems innocuous enough at first. Here’s how he explained it in a hearing yesterday:
This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8. If adopted, this legislation would be a significant step towards rectifying the extreme disparities between the D.C. Circuit and the Second and Eleventh circuits.
Even the name of Grassley’s bill, “The Court Efficiency Act,” sounds anodyne, but the bill’s sponsors — including Sens. Ted Cruz and Mike Lee, two of the most extreme Republicans on legal issues — should give one pause.
See, for months, Republicans have been filibustering Obama’s nominations to the D.C. Circuit Court of Appeals, among others. Grassley’s bill would simply eliminate three of those vacancies, reducing the court from 11 to eight judges, and thus cement the existing conservative majority on the country’s second most powerful court, after only the Supreme Court.
Nan Aron, the president of the Alliance for Justice, a progressive legal advocacy group, said the move is just a clever reinterpretation of FDR’s “court-packing scheme.” “The conservative majority on the D.C. Circuit has used its power to issue decisions undermining protections for workers, consumers, and the environment that affect all Americans. This activism is possible only because there are four vacancies on the court,” Aron said.
The stated reason for Grassley’s bill is to equalize the caseload between the D.C. Circuit and other courts, but Ian Millhiser, a legal expert at the Center for American Progress, calls Grassley’s pretext “highly misleading.” “Unlike other federal courts of appeal, the D.C. Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuit,” he wrote at ThinkProgress.
While Democrats deployed the filibuster against judicial nominees under Bush, Republicans have used it far more often by any measure. The slow pace of confirmations has hollowed out the federal judiciary to such a degree that Chief Justice John Roberts warned the courts were facing a crisis and called on Republicans to advance more judges.
By: Alex Seitz-Wald, Salon, April 11, 2013
Tenther Judges “Radical Misreading Of The Constitution”: All Labor, Business Or Wall Street Regulation Is Unconstitutional
For more than two years, ThinkProgress has tracked “tentherism,” a radical misreading of the Constitution which claims that pretty much everything the federal government does is unconstitutional. Tenther lawmakers — who include members of Congress, senators, governors and at least one sitting Supreme Court justice — have claimed that child labor laws, Social Security, Medicare, Medicaid, clean air laws and the federal highway systemall violate the Constitution.
Even tentherism has a limit, however. While tenthers would all but eliminate our national leaders’ ability to solve national problems, they concede that state governments are still free to serve their citizens. Which is why a recent concurring opinion signed by U.S. Court of Appeals judges David Sentelle and Janice Rogers Brown is so disturbing. Under Sentelle and Brown’s vision, any attempt to protect workers, investors or consumers from unscrupulous businesses is in jeopardy:
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. . . . Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.
To translate this a bit, Sentelle and Brown disagree with the fact that representatives chosen by the American people, rather than unelected judges such as themselves, get to decide America’s economic policy. At best, their opinion calls for a return to a discredited era when judges could simply toss out laws protecting workers or consumers that the judges did not like.
Yet Sentelle and Brown also appear to be arguing for something even more radical than that. Their opinion complains that “economic liberty [is] not a fundamental constitutional right.” “Fundamental rights” are the very most protected rights under the Constitution. The right to be free from race discrimination is a fundamental right. As is the right to criticize the government. Sentelle and Brown’s opinion, however, concerns a law that removes a loophole exempting certain dairies from a 70 year-old system regulating the milk industry. In their apparent view, a law that regulates how dairy executives operate their business is exactly as offensive as a law that bans black people from voting.
Nor would their opinion stop there. The minimum wage regulates how dairy executives operate their business. As do child labor laws. Or workplace safety laws. Or laws that prevent dairies from selling spoiled or tainted milk. In Sentelle and Brown’s America, these laws likely would also be just as constitutionally suspect as a law that gives special rights to white people and not to black people.
Nor would their opinion stop there, for, indeed, their opinion laments that “economic legislation” as a whole is left to the people’s representatives and not to judges. The likely implication of Sentelle and Brown’s vision is any attempt to protect workers, or to regulate Wall Street, or to ensure that food and drugs sold in the marketplace are safe, or to enact any law protecting ordinary American consumers must be treated with exactly the same constitutional skepticism judges would bring to a law that tosses people who speak out against President Obama in jail.
Yet for all the many, many laws they would strike down, for all the anarchy they would create by sweeping away literally centuries of regulation in a single constitutional whirlwind, one thing is conspicuously absent from Sentelle and Brown’s opinion. At no point do they cite a single word of the Constitution which supports their sweeping assault on America’s power to govern itself.
This is not a coincidence. Those words do not exist.
By: Ian Millhiser, Think Progress, April 16, 2012
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