Wash. Times Lazily Parrots GOP Misinformation On D.C. Circuit Vacancies

Blog ››› ››› SERGIO MUNOZ

The Washington Times attempted to recycle misinformation about Senate Majority Leader Harry Reid's warning that GOP obstructionism of President Obama's nominees is unsustainable, but published an inaccurate argument that doesn't support its own rhetoric.

In a May 24 editorial, The Washington Times claimed Reid's announcement that he would revisit filibuster reform in July because of the unprecedented obstructionism of the president's executive and judicial nominees "disturbed the peace of the Senate" and was a "variant" of court-packing analogous to former President Franklin Roosevelt's famous threat to expand the number of seats on the pre-war Supreme Court. From the editorial:

Senate Majority Leader Harry Reid doesn't like the direction the federal judiciary is heading, so he has come up with a variant of court-packing to achieve his results. He took the Senate floor Wednesday to defend the use of the "nuclear option" to bypass Senate rules and force through President Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit.

That would be the same court whose three-member panel in late January ruled, unanimously, that Mr. Obama's faux "recess appointments" of Big Labor-approved nominees to the National Labor Relations Board were unconstitutional. "You have a majority in that court that is wreaking havoc in the country," Mr. Reid complained, citing only the NLRB ruling. "For the first time in 230 years, they ruled the president can't make a recess appointment."

The three judges accused of havoc-wreaking merely made the point, obvious to English-speakers everywhere, that the president is obliged to wait for a recess before he can make a recess appointment.


Mr. Reid's rant disturbed the peace of the Senate amid debate over how quickly to proceed with the nomination of Deputy Solicitor General Sri Srinivasan to the 11-member D.C. appeals court, which currently has four vacancies. Mr. Reid's claim that the vacancies must be filled at once to restore ideological "balance" to the court is patently false, given that four of its seven judges are appointees of Republican presidents and three were appointed by Democrats. Four more liberal judges would likely guarantee a rubber stamp for Mr. Obama's agenda. Some "balance."

Mr. Reid is trying to follow the example of Franklin D. Roosevelt, who dreamed up the concept of outcome-based adjudication with his 1937 attempt to pack the U.S. Supreme Court.

Contrary to The Washington Times' description that Reid is trying to "bypass Senate rules," Reid is actually adopting a GOP proposal that was floated when Republicans were in the majority, which was to change Senate rules to allow filibusters to be broken by majority vote. Although a handful of longer-tenured Democratic Senators have been hesitant at such a move - the so-called "nuclear option" - the stark realization that GOP opposition to the president's agenda has extended to blanket opposition of his nominees is reportedly causing a change in position

The unprecedented filibustering and similar obstructionist tactics has led to such a logjam that Reid has decided he will present the currently blocked nominees for labor secretary, Environmental Protection Agency administrator, Consumer Financial Protection Bureau director, and the remaining nominees to the important U.S. Court of Appeals for the D.C. Circuit all together. If the GOP blocks highly qualified nominees again, Reid has strongly suggested he will reform the filibuster and change Senate Rules so a president's executive and judicial nominees are allowed an up-or-down vote.

This is, of course, nothing like the "court packing" scheme that Roosevelt proposed.

Roosevelt's plan was to change the number of seats on the court, not fill vacant ones like Reid is attempting. Indeed, if any proposal is analogous, it is that of Sen. Chuck Grassley (R-IA), who despite having no problem filling vacant seats on the D.C. Circuit with right-wing judges when George W. Bush was president, now amazingly proposes eliminating the exact same ones. This would preserve the current skew toward Republican nominees, which when evaluated by how many judges actually hear and decide cases, is far more lopsided then The Washington Times admits. As illustrated by People For The American Way:


It is this slant on the D.C. Circuit to which Reid was referring, which even with the recent confirmation of Srikanth Srinivasan to one of the vacant seats, still is tilted toward Republicans by another four. The ensuing decisions from predictably conservative panels have been unsurprisingly hostile to progressive legislation and policy supported by Democratic presidents.

For example, although the editorial lambasts "outcome-based adjudication," The Washington Times amazingly applauds the D.C. Circuit's recent decision that completely changed the long-standing definition of "recess appointments" to one that conveniently assists the GOP blockade, explaining this decision was "obvious to English-speakers everywhere." But the editorial's bizarre assertion fails to address the fact that this "obvious" conclusion contradicts decades - if not centuries - of American precedent. Reid's observation of this history has been confirmed by multiple analyses, including two reports from the Congressional Research Service.

Nevertheless, The Washington Times is doing its best to bulwark GOP talking points in advance of what hopefully will be a serious reexamination in July of whether the Senate rules are currently broken and must be fixed with filibuster reform. As president of the Constitutional Accountability Center Doug Kendall explained in a recent op-ed, Senate Republicans have a lot to lose if their unprecedented obstructionism is curbed, which explains the right-wing media's frantic spin. From the Reuters op-ed:

So what is Grassley serious about? It looks like he is intent on maintaining conservative dominance over the D.C. Circuit.

As Pulitzer prize-winning columnist Steven Pearlstein explained in the Washington Post, "Dysfunctional government has become the strategic goal of the radical fringe [on the political right]. ... Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies."

This war on federal agencies is succeeding because the D.C. Circuit is dominated by conservatives -- four of the court's seven current active judges are Republican appointees, as are five of the six senior judges, who also regularly hear cases.

Ideology matters because the D.C. Circuit has exclusive jurisdiction over many federal laws and regulations involving a host of issues including national security, environmental protection, food and drug safety and employment laws.


It makes twisted political sense that Grassley and his colleagues would fight furiously to protect their ideological advantage on a court that is advancing an anti-regulatory agenda without congressional Republicans having to lift a finger - but that doesn't make these efforts right.

The Constitution gives the Senate the duty of providing "advice and consent" on the president's judicial nominees. It doesn't give Grassley - or any other senator - the right to play political games that hurt the judiciary and the country.

Posted In
Government, Nominations & Appointments, Justice & Civil Liberties
The Washington Times
Courts Matter
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