Here We Go Again: Right-Wing Media Goad GOP To Extend Court Vacancy Crises They Created

Conservative media are gearing up to target Caitlin Halligan - President Obama's nominee to the D.C. Circuit Court of Appeals - in their ongoing campaign to block the administration's judicial nominees, a practice that has led Justice Ruth Bader Ginsburg to lament "we are destroying the United States' reputation in the world as a beacon of democracy."

Right-wing media have a long history of insisting that the Republican Party filibuster and otherwise obstruct judicial nominees who are insufficiently conservative. The resulting court vacancies have led to "judicial emergencies," but right-wing media have made it clear they will not let up as the Senate considers President Obama's nominees to the crucial D.C. Circuit.

Directly after President Obama was re-elected, National Review Online's Ed Whelan urged the Republican Party to block the president's Supreme Court nominees because those without “conservative judicial principles” are “unfit for the Court.” On February 14th, the Senate Judiciary Committee once again sent to the full Senate the nomination of former New York Solicitor General Halligan to the second most important court in the country, the D.C. Circuit, which is considered the last stop on the way to the Supreme Court. Whelan has consistently and prolifically joined the right-wing media opposition to Halligan's nomination, and recently made clear he will continue to extend his right-wing litmus test to the entire federal judiciary.

Because Republicans have followed this lead, the D.C. Circuit now has four vacancies. The most recent vacancy arose with the semi-retirement of David Sentelle, the conservative judge who wrote the radical Noel Canning decision that eliminates the long-standing ability of the president to check an obstructionist Senate. Legal expert Judith E. Schaeffer, vice president of the Constitutional Accountability Center, said of the D.C. Circuit's vacancies: "[n]ot to put too fine a point on it, but this situation is a travesty."

If right-wing media have their way, the travesty of this vacancy crisis will continue. Beyond the right-wing rhetoric and "bogus and hypocritical argument[s]," it is illustrative to look at some of the recent substantive reasons behind conservative opposition to President Obama's picks for the D.C. Circuit, Halligan and former Principal Deputy Solicitor General of the United States Sri Srinivasan.

Halligan has the distinction of being a target of the NRA's lobbying efforts to oppose judicial nominees, a recent initiative that also attempted to block Justices Sonia Sotomayor and Elena Kagan. Halligan's offense was that as New York Solicitor General she held gun companies responsible in court for business practices that funneled guns to criminals. In response, the NRA not only managed to get the infamous Protection of Lawful Commerce in Arms Act passed - which subsequently immunized gun companies from negligence claims - they were also credited with the eventual filibuster of Halligan to the D.C. Circuit. Considering her widely lauded credentials, this action against the gun industry stands out as the real reason behind Republican obstruction, other than the fact that Republicans are engaging in a flat-out and unprecedented blockade of Democratic nominees. The New York Times' legal expert Linda Greenhouse tried to get to the bottom of the Halligan smears in 2011:

Her qualifications are beyond any possible doubt. A former Supreme Court law clerk, she has argued before the court five times, most recently last month. She headed the appellate practice of a major law firm after serving for six years as New York State's solicitor general, in charge of an office of 40 lawyers who represent the state in state and federal appellate courts. Currently, she is general counsel of the Manhattan district attorney's office, the place where Justice Sonia Sotomayor worked before becoming a judge. Ms. Halligan's nomination has won endorsements from leading members of the Supreme Court bar across the ideological spectrum. Oh, and did I mention that she is 44 years old?

As far as I know, Ms. Halligan has not been an activist for any cause. So what could Republican senators possibly hold against her? Nothing, it turns out, except excellence and career potential. Conservative bloggers floundered around trying to come up with something. A National Review blogger was reduced to accusing her of “left-wing extremism” for having been one of three dozen members of a committee of the Association of the Bar of the City of New York that issued a report in early 2004 critical of the Bush administration's Guantanamo Bay detention policies.

As it happens, this report has been sitting on my shelf for the past seven years. Not having looked at it in quite a while, I turned to the conclusion on page 153 to see how exactly how extreme it was. Anyone who finds the concluding paragraphs to represent left-wing extremism has been living in a different universe[.]

Srinivasan, similarly exceptionally well-qualified, is a more recent nominee and has yet to suffer the right-wing media misinformation campaign that was levied at Halligan. But, in addition to the apparent fact that Senate Republicans prefer a D.C. Circuit with a 40 percent vacancy rate to confirming any of President Obama's nominees, a new rationale has emerged for their recent refusal to consider Srinivasan. Rather than construct a new right-wing media conspiracy theory, his opponents have simply revived an old one that believes the Department of Justice (along with former Vice President Walter Mondale) did something nefarious by convincing the city of St. Paul, Minnesota, to drop a litigation strategy that might overturn "forty years of civil rights law." A strategy that was, ultimately, an unremarkable attempt on the part of DOJ to avoid provoking a Supreme Court dangerously close to having a majority overturn decades of antidiscrimination law.

Srinivasan is linked to this conspiracy theory because he was a DOJ employee at the time, and reports indicate that this is the reason behind Senate Republicans' hold up of Srinivasan's nomination. The right-wing media's hatred of one of the most historically effective civil rights doctrines - the ability of a court to prove discrimination through its statistical effect - is apparently reason enough to obstruct Srinivasan's nomination as well. Civil rights and gun violence prevention: involvement with either looks anathema to Senate Republicans.

When Halligan and Srinivasan are reconsidered before the Senate, it is important the media remember Republican obstructionism may now be extended to President Obama's cabinet and agency picks, but the unprecedented practice started with judicial nominations. And this is most certainly not a case of Democrats-did-it-too, as Alliance for Justice has extensively detailed. From a November 2012 report:

The Senate has confirmed far fewer judicial nominees at this point in President Obama's first term than it had for his two predecessors in office, and the percentage of confirmed district court nominees is at historically low levels. When President Obama was sworn into office there were 55 district and circuit court vacancies, including 20 seats considered “judicial emergencies” by the administrative office of the U.S. Courts. Today, the number of vacancies has risen over 50%, to 83 seats, 34 of which are judicial emergencies. This trend stands in stark contrast to President Clinton and President Bush's first four years, when vacancies declined by 65% and 34%, respectively. Today, nearly one out of eleven federal judgeships is vacant.

These deplorable facts did not happen by accident--they are mostly due to Republican Senators' abuse of Senate procedure to obstruct even non-controversial nominees.