Political Hay

Court Packing Redux

Obama and Senate Democrats outdo FDR.

By 12.9.13


On Monday afternoon, we’ll start to see the results of the Senate Democrats’ decision to abolish the filibuster for non-Supreme Court judicial nominees when Majority Leader Harry Reid calls for a vote on the nomination of Patricia Millett (above, right) for a seat on the DC Circuit Court of Appeals. In so doing, the Senate Democrats and the Obama Administration will demonstrate their own hypocrisy while packing the DC Circuit to further the Administration’s regulatory agenda and bestowing an unnecessary lifetime job on at least three nominees, of whom Millett is only the first.

When President Franklin Delano Roosevelt tried to pack the Supreme Court in 1937, he encountered widespread opposition that included some of his supporters in Congress. FDR was vexed by the Court, which had declared key New Deal legislation unconstitutional. FDR proposed to add enough seats to the Court to assure that it wouldn’t get in the way of his agenda. Even though his proposal died in the Senate, FDR ended up getting what he wanted after the Court began deciding cases more to his liking and Justice Van Devanter’s retirement started a chain of changes in the Court’s personnel. Indeed, within two and a half years after the court-packing proposal went down in flames, FDR had named five new Supreme Court Justices.

Just like the Supreme Court of 1935 and 1936 upset FDR, the Obama Administration is unhappy with the DC Circuit. That Court hears most of the challenges to new federal regulations, and President Obama has made no secret of his willingness to act through the federal bureaucracy if Congress won’t do his bidding.

The DC Circuit Court of Appeals is in the Administration’s cross-hairs because it won’t stay in line. It rejected the EPA’s attempt to regulate cross-state power plant emissions because the EPA exceeded its statutory authority “in two independent respects.” That court also held that the Securities and Exchange Commission exceeded its powers when it adopted a Dodd-Frank rule calling for publicly traded corporations to provide information about, and their ability to vote for, shareholder-nominated candidates for their boards of directors. It told President Obama that he couldn’t tell Congress whether it was in session or not, rejecting his attempt to fill vacancies in executive offices without action by Congress.

In a transparent attempt to pack the Court, the Obama Administration nominated and Senator Reid scheduled cloture votes for nominees to fill the three vacancies on the DC Circuit. One of those vacancies has been open since 2006, when then-Judge John Roberts became Chief Justice of the US Supreme Court. After the Democrats took over the Senate in the 2006 midterm elections, the Senate Judiciary Committee didn’t give Peter Keisler a hearing. As a result, that seat has been vacant for more than 2,700 days. During nearly all of that time, the Democrats held the Senate and controlled the Judiciary Committee. As Ed Whelen says, they certainly didn’t see any “urgent need” to fill that seat then.

That was then, and this is now for the Senate Democrats in more ways than one.

Now, to further the President’s agenda, Senate Majority Leader Harry Reid said we have to “switch the majority” on the DC Circuit to stop it from “wreaking havoc on the country.” And Senator Schumer explained, it’s time to “fill up” the court “one way or another.”

When Senate Republicans voted against cutting off debate on any of the three DC Circuit nominees, the Senate Democrats invoked the so-called nuclear option and curtailed the minority’s ability to continue debate on judicial nominations. In this, the Senate Democrats cut off debate on judges like they promised they wouldn’t. Take Senator Reid, who told Meet the Press, “We’re not touching judges” on July 14, and told a press briefing, “We’re not talking about changing the filibuster rules that relates to nominations for judges” on July 11. But that’s exactly what they did on November 21.

Moreover, when some talked about the nuclear option to stop Democrats’ obstruction of Republican judicial nominees in 2005, Senate Democrats spoke in favor of preserving the filibuster. Then-Senator Obama was one of them, urging the Republicans not to make the change “because they can get away with it.” Senator Reid said, “We stand united against” the proposed change.” Senator Jack Reid (D-RI) said, “The Senate cannot become a mere rubberstamp for any President.” “Any President” must not mean Obama.

There’s no good reason to give three more judges lifetime jobs on a court that doesn’t need them. The DC Circuit’s total workload and its workload per judge have declined since 2005. The number of appeals filed in that court has gone down by 13.5% since 2005, from 1,379 in 2005 to 1,193 in 2012. The number of cases per judge, which was 115 in 2005 and is now 108, is the lowest of any of the appellate courts in the country; the average caseload for a federal appellate judge is 344 cases. Finally, while there are now fewer active judges on the DC Circuit than in 2005, the number of case per active judge is about the same, 138 cases per active judge in 2005 and 149 cases today. The DC Circuit has enough judges to handle its work; it doesn’t need more.

The better solution for a court with vacancies that doesn’t need more judges to handle its workload is to move the vacancies to courts that need them. Senator Grassley and Representative Tom Cotton have proposed precisely that, moving one seat to each of two far busier federal appellate courts. But, that’s not what the Democrats want.

They want a court that will be a swinging gate for the Obama Administration’s regulatory agenda. The Washington Post points out that the rules change “should make it easier for President Obama to accomplish key second-term priorities, including tougher measures on climate change and financial regulation.” That agenda runs from Obamacare regulations through attempts to muzzle political speech to federal land and water grabs. Rep. Tom Cotton explains, “From the IRS to the EPA to the NLRB, the last thing [we] need is more judges in Washington, D.C. making decisions for our state[s].”

The answer is to hold Senate Democrats responsible, not just for their votes on judicial nominees, but also for the implementation of the Obama Administration’s regulatory agenda. Senator Mark Pryor (D-AR) may have voted to preserve the filibuster, but he has voted for each of the DC Circuit nominees and for Justices Sotomayor and Kagan. Senators Mary Landrieu, Kay Hagan, and Mark Begich have likewise voted for each of these nominees. In so doing, they have endorsed future regulatory impositions on the voters they represent.

The voters should hold them responsible.

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.