On Eve Of Another Republican Filibuster, National Review's Ponnuru Falsely Accuses Democrats Of Court-Packing

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Bloomberg columnist and National Review editor Ramesh Ponnuru picked up the repeatedly debunked right-wing media myth that President Barack Obama is "court-packing" because Senate Democrats are trying to hold up-or-down votes on nominees to the D.C. Circuit Court of Appeals.

In addition to the fact that filling vacant seats is not actually "pack[ing] the court," the term used to describe FDR's failed attempt to add more seats to the Supreme Court, Ponnuru includes a variety of discredited falsehoods in his column as reasons why Republicans should continue to block Obama's judicial nominees, regardless of their stellar qualifications and bipartisan endorsements.

From his November 12 Bloomberg column:

Senate Majority Leader Harry Reid says he intends to force a vote this week on the nomination of Cornelia Pillard to the court. Pillard's is one of three nominations Republicans are opposing. They say the Democrats are trying to pack the court. The Democrats say they're just trying to fill vacancies, and argue that the Republicans' behavior is so abusive they'll restrict the filibuster if it continues.

Republicans should remember what happened the last time we had such a fight, and they shouldn't give in.

Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points.

As it happens, the Republicans have the better of the current argument. They aren't conducting a "blockade" that violates past norms. President Barack Obama's nominees are getting confirmed at a faster pace than Bush's were at the same point in his presidency. One of Obama's nominees, Sri Srinivasan, was unanimously confirmed in May.

And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court's chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that "there wouldn't be enough work to go around" if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.

I'll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit's caseload is. What they care about is the court's ideological balance.

Ponnuru goes on to assert that the D.C. Circuit "is actually balanced between Democratic and Republican appointees." This is not the first time right-wing media have trotted out faulty math to to try and argue that the D.C. Circuit is somehow ideologically balanced -- but it just isn't true. In fact, there are six judges on the court who have taken "senior status," a form of quasi-retirement that allows those judges to hear panel cases. Of the six judges who have taken senior status, five are Republican appointees. Far from being "balanced" ideologically, conservative justices outnumber their more liberal counterparts 9 to 5. 

The rest of Ponnuru's column is equally misleading. His claim that the blanket obstructionism congressional Republicans have engaged in regarding Obama's nominees is no worse than the opposition faced by former President George W. Bush's nominees is patently false. According to such varied sources as the nonpartisan Congressional Research Service and the right-wing Wall Street Journal, Obama's nominees have faced unprecedented obstruction.

Republicans have blocked even the most uncontroversial of Obama's judicial picks, whereas Senate Democrats generally limited their opposition to far-right ideologues. In fact, a 2005 agreement cobbled together by the bipartisan "Gang of 14" in exchange for confirming some of Bush's radical nominees would have reserved the filibuster only for those with "extraordinary" records -- but Republicans ignored the deal after their extreme picks were seated. This blatant disregard for objections based on qualifications has continued unabashedly as Republican Senators feel free to admit their current filibuster on D.C. Circuit nominees has nothing to do with their suitability for the job, but about preserving the current dominance of Republican appointees on the court. Just last week, in response to the recently discredited 60 Minutes Benghazi report, Sen. Lindsey Graham upped Sen. Ted Cruz by not even bothering to provide a connection between filibusters and court composition, renewing his threat to block all of Obama's nominees until he was given access to more survivors of last year's attack on U.S. diplomatic facilities.

In an attempt to minimize Republican obstructionism, Ponnuru advances the lie that the D.C. Circuit is underworked. But as People for the American Way explained, not only does this ignore the opinion of Republican-appointed jurists serving on the Judicial Conference's Committee on Judicial Resources, it fails to recognize that Senate Republicans were happily working to fill these same seats when they were nominated by Bush, even though the caseload was lower than it is today.

Finally, contrary to the anonymous source Ponnuru cites, D.C. Circuit judges who have actually gone on the record deny that "there wouldn't be enough work to go around" because the court's docket includes some of the most complicated and time-consuming cases in the country. According to Patricia Wald, former chief judge of the D.C. Circuit, the court is considered the second-most important in the country for a reason:

This court has exclusive jurisdiction over many vital national security challenges and hears the bulk of appeals from the major regulatory agencies of the federal government. Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.

[...]

The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record -- all of which culminates in lengthy, technically intricate legal opinions.

I served on the D.C. Circuit for more than 20 years and as its chief judge for almost five. My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases. The nature of the D.C. Circuit's caseload is what sets it apart from other courts.

So it turns out that somebody does "care about" the D.C. Circuit's caseload -- the fact that it's the former chief judge of the D.C. Circuit is apparently meaningless to Ponnuru.

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