Networks Remain Silent On D.C. Circuit Court Crisis As Another Possible Filibuster ApproachesApril 5, 2013 4:03 PM EDT ››› SERGIO MUNOZ
Evening network news shows have largely ignored the filibuster brinkmanship of Senate Republicans in blocking President Obama's judicial nominees, as well as the resulting vacancy crisis at the important D.C. Circuit Court of Appeals.
The D.C. Circuit Court of Appeals is considered the most important court in the country after the Supreme Court, in part because many of its judges go on to become justices, and in part because it is by far the most powerful appellate check on the federal government. Since it is required to examine challenges to a wide range of federal action - from environmental regulations to consumer protections to voting rights - it has the ability to uphold or strike down law on a national level.
However, as another victim of relentless Republican filibustering and the ensuing inability to hold up-or-down votes on the president's nominees to the federal courts, the D.C. Circuit currently has nearly 40 percent of its judgeships vacant. A Nexis search of evening network news shows in the past six months indicates that this problem has been ignored by ABC, CBS, and NBC.
Because the D.C. Circuit has a group of semi-retired senior judges who still hear cases, the repeated refusal of Republicans to allow a confirmation vote for Obama's last nominee to the D.C. Circuit - the "highly qualified" and bipartisan-praised general counsel to the Manhattan district attorney Caitlin Halligan - ensured the circuit remained highly skewed to the right. The results have been predictable.
Even though cases are randomly assigned to three judge panels, the disparity between Republican and Democratic appointees has resulted in panels that are too often ideologically conservative. As the stakes are so high in the D.C. Circuit, subsequent opinions have been alarming for progressive legislation and precedent.
For example, not only have Republican appointees on the D.C. Circuit seriously hampered the ability of the Environmental Protection Agency to curb pollution, they took the unprecedented step of declaring the centuries-old practice of recess appointments unconstitutional. If this latter decision is upheld by the Supreme Court, the D.C. Circuit will have destroyed the last safety valve for lockstep filibustering.
Up next: a slew of new challenges to regulations vital to the operation of financial and health care reform, promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act. Given the long-standing Republican antipathy to these laws, prospects of neutral review are grim. As reported recently by Matt Viser of The Boston Globe:
The impact on Obama's agenda, observers said, is clear. In the past several months alone, the court has weakened antipollution regulations, sided with tobacco companies, and restricted the president's ability to make appointments without congressional approval.
And the court's power over White House policies is about to grow exponentially. It is slated to rule on challenges to regulations written to comply with the Dodd-Frank financial regulations law, which was Congress's chief response to the Wall Street meltdown. And when regulations made by government agencies to comply with the new national health care law are challenged, it will likely be this court that hears the cases -- making its ideological balance all the more relevant.
The partisan gridlock in Washington -- largely fueled by the determination of Republican legislators to block Obama's agenda by any means -- manifests itself in almost everything Washington tries to do these days. It is most visible in the ongoing budget stalement [sic] and the drama that nearly took the nation right over the so-called fiscal cliff, but the impact on the federal court system, while less obvious to the public, is no less damaging.
[A]t the D.C. Circuit court, the ideological odds are stacked: Of the 13 judges, both active and senior, who can hear cases, nine of them were appointed by Republicans.
Over the past six months, there have been 191 oral arguments heard by three-judge panels at the D.C. Circuit court, according to the public schedule. In nearly 80 percent of those cases, at least two of the three judges on the panel were appointed by Republican presidents -- and in nearly one-quarter of the cases all three judges were Republican appointees.
The main impact of having fewer judges -- and having none approved since 2006 -- is the partisan tilt of the court. The last time a Democratic president's nominee to the court was confirmed was in 1997.
On April 10 the Judiciary Committee has scheduled a hearing for the president's newest nominee to the D.C. Circuit, Principal U.S. Deputy Solicitor General Sri Srinivasan. Smears from the right-wing media have been noticeably muted, with the exception of trying to link him to a non-scandal involving the Department of Justice's role in the withdrawal of a civil rights case from Supreme Court review.
Like Halligan before him, Srinivasan is extremely well-qualified for the post and has managed to garner even more bipartisan support. A bipartisan letter urging his swift confirmation was signed by not only prominent former Democrats of the Solicitor General office, but also by Paul Clement (lawyer for the challenge to health care reform and defense of the Defense Of Marriage Act), Theodore B. Olson (Solicitor General under George W. Bush), and Kenneth Starr (Solicitor General under George H.W. Bush). In short, he is another stellar nominee, with the advantage of not having the National Rifle Association prominently oppose him like they did Halligan.
Republicans have been so successful at attempting a veritable nullification strategy of the president's agenda in part because certain large outlets in the media have ignored the bigger picture. News outlets have been particularly silent on the subject of judicial nomination filibusters.
Jonathan Bernstein of The Washington Post has described the fate of Srinivasan's nomination as the "moment of truth" for whether or not immediate filibuster reform is necessary. If Srinivasan's nomination goes down - even without help from the right-wing media - the network news should perhaps share in this self-reflection.