Pssst…Did you hear about the new Obama scandal? The president is seeking to use his constitutional authority to nominate judges for the D.C. Circuit Court of Appeals! There are three vacancies on that Washington bench, and Obama intends to fill those vacancies!
Yeah, I know. Big whoop.
But the party that has lost the last two presidential elections says it is a scandal, and it has even concocted a snazzy slogan in a bid to make it so. According to the GOP, Obama’s plan to nominate three candidates for those three vacancies is nothing more than a craven plot to “pack the court.” Various senators have been floating that phrase – Charles Grassley, the ranking GOPer on the Judiciary Committee, used it six times the other day – and the conservative media echo chamber, most notably the Wall Street Journal editorial page, has dutifully chimed in, accusing Obama of “packing the court for political ends.”
I get why the Senate Republicans are floating that rhetorical nonsense (stay tuned for why it’s nonsense). The 11-member federal appeals bench in Washington is considered the second most powerful court in America, one small notch below the Supremes. Big and thorny issues on the legislative and regulatory fronts – everything from greenhouse gases to national security to cigarette warning labels – fall within the court’s jurisdiction. At the moment, the court has only eight judges, four Republican appointees and four Democratic nominees. Obama is planning to break the tie by filling the three vacancies.
Yet the Republicans somehow insist that he’s “court packing.”
A basic history lesson is in order. That term originated in the late 1930s, when Franklin D. Roosevelt tried (in vain) to expand the size of the nine-member U.S. Supreme Court, so that he could outflank the conservative majority with judges who presumably would be sympathetic to the New Deal. But Obama isn’t trying to expand the size of the D.C. appeals bench. He’s not trying to “pack the court,” he’s trying to fill the court.
And ,naturally, Obama is trying to fill it with nominees of his ideological choosing. That’s what presidents do; when they win elections, they win the right to name qualified nominees. Indeed, 15 of the last 19 appointees to the D.C. appeals court were tapped by Republican presidents – and Senate Republicans never claimed that those presidents were “packing the court.”
Nor did they try to game the court by reducing its size – which is what Grassley, the ranking Judiciary committee Republican, is currently trying to do. To prevent Obama from filling those three vacancies, he has introduced a bill that’s hilariously called the “Court Efficiency Act.” He’s seeking to reduce the D.C. appeals court from 11 members to the current eight, because, he claims, it’s “the least busy” of all the appeals courts – in terms of the number of cases it handles. Which is grossly misleading, because the D.C court’s qualitative load (the aforementioned national security, regulatory, and legislative stuff) is actually heavier than anywhere else.
Funny, I don’t recall that Grassley or Mitch McConnell (another practitioner of the “court packing” charge) ever tried to shrink the size of the D.C. appeals bench when George W. Bush ran the show. Quite the contrary, in fact. In 2005, they voted to confirm several Bush nominees, thereby filling two vacancies and maximizing the bench at 11 members.
But we all know what’s really going on here. Republicans are merely looking for new ways to bar Obama from doing his job.
And the old ways have already been working quite well; via the Senate filibuster and other parliamentary delays, Republicans have broken all previous records for obstruction. At the moment, there are 83 federal court vacancies, triple the tally during George W. Bush’s second term. And according to a new study by the nonpartisan Congressional Research Service, the median waiting time for Obama’s federal district court nominees, from nomination to confirmation, was 215 days during his first term. Bush’s first-term median was 137.5 days. Ronald Reagan’s median was 28.
Elections and consequences
It’s clear that Obama (finally) intends to force the issue. His impending bid to fill those three appeals court vacancies is a frontal challenge to the GOP. Would Republicans actually attempt to filibuster all three? If that were to happen, they’d risk being tagged anew as knee-jerk obstructionists. (Bob Dole, the ex-Senate GOP leader, said on Fox News Sunday that the Senate is “bent pretty badly” thanks to the GOP’s abuse of the filibuster, “no doubt about it.” Referring to his stint during the 90s, “at least we got our work done.”)
If the GOP filibusters the three nominees, Senate Democrats might (finally) grow a spine and (finally) reform the filibuster rules, so that federal judges could be confirmed by a simply majority. Or the GOP, fearful of a rules change, could simply decide not to block Obama’s nominees, thereby giving him the win – and the right to fulfill his constitutional authority.
And it’s a win he has earned, by winning two elections – as Byron York, the well-regarded conservative journalist, rightly recognized yesterday in a pair of tweets: “It doesn’t strike me as ‘packing’ to nominate candidates for available seats” and “Bottom line is Obama won election, gets to nominate judges.”
Elections have consequences; the majority of voters rendered their verdict. By refusing to recognize that fundamental truth, by routinely filibustering judicial nominees and conjuring a phony “court packing” scandal, Republicans once again are exuding contempt for democracy.
Follow me on Twitter, @dickpolman1