The Wall Street Journal's Hypocritical Opposition To Obama's Judicial Vacancies

A Wall Street Journal editorial downplayed the vacancies on the D.C. Circuit Court of Appeals to justify Republican opposition to filling the posts, ignoring the Journal's past editorials highlighting vacancies during the George W. Bush administration as well as statements from judges on the D.C. Circuit regarding its unique workload and need for a full bench.

WSJ Downplays Vacancies On DC Circuit

WSJ: “The Appellate Court Has More Than Enough Judges For Its Work Load.” A Wall Street Journal editorial argued that Republicans are justified in refusing to confirm President Obama's nominees to fill three vacant seats on the D.C. Circuit Court:

Senate Democrats are preparing to fight for President Obama's plan to confirm three new judges to the D.C. Circuit Court of Appeals in an effort to tilt a court that has stymied the Administration's regulatory agenda. According to new data from the court, however, the judicial case load doesn't justify the Senate fire drill.

In response to a questionnaire from Iowa Republican Charles Grassley, D.C. Circuit Chief Judge Merrick Garland recently provided numbers from the court's docket that give a clearer picture of overall case load of the court as well as the role played by judges who take senior status but continue to hear cases. The letter makes clear that the Democratic rush to confirm nominees is based on political hype, not judicial need.


The D.C. Circuit is now divided evenly between four Democratic and GOP appointees each, and Mr. Obama wants to pack the court to be able to overrule three-judge panel decisions with en banc rulings by the entire court. Based on the court's work load, Republicans are justified in saying no. [The Wall Street Journal, 7/24/13]

WSJ Previously Argued For GOP Senate To Confirm Bush Nominees For Judicial Vacancies

WSJ Called On GOP-Controlled Senate To Fill Appeals Court Vacancies Before 2006 Summer Recess. A March 2006 Wall Street Journal editorial urged the Republican-controlled Senate to fill 17 judicial vacancies before the summer recess, and warned that not doing so could hurt their chances at keeping the Senate:

Everyone deserves a break, even the U.S. Senate. But enough already. It's been two months since Samuel Alito was confirmed to the Supreme Court and it's past time Senate Republicans got back to work confirming appeals-court judges. They won't have 55 seats forever.

Or perhaps even after November 7. Judges are a key issue for the GOP's base, who could stay home on Election Day rather than turn out for Republicans who shilly-shally about confirming President Bush's nominees. There are 17 vacancies on the appeals bench, including nine pending nominations. They deserve to be filled as soon as possible before the summer recess.


There are also seven appeals-court nominees awaiting action in the Judiciary Committee, including two -- Brett Kavanaugh and William Haynes -- whose nominations have been languishing for years. Mr. Haynes's chances are iffy since, as general counsel of the Pentagon, he has had run-ins with Republicans John McCain and Lindsey Graham. A third, Judge Henry Saad, withdrew his nomination last week under Senate pressure.


The advice-and-consent clause of the Constitution gives the Senate the duty to vet all federal judicial nominees. Now it's time for the remaining nominees to have the up-or-down floor votes they deserve. [The Wall Street Journal, 3/27/06]

WSJ Also Urged GOP Senate To Fill Judicial Vacancies Before 2006 Midterm Elections. A June 2006 Wall Street Journal editorial warned that the Republican-controlled Senate needed to fill judicial vacancies before they lost their majority status:

The Senate is back in session, and we'll soon see if Republicans are serious about confirming President Bush's nominees for the appeals courts. Majority Leader Bill Frist kept his promise to confirm Brett Kavanaugh to the D.C. Circuit before Memorial Day, after he'd waited three years for a vote.


There are 18 vacancies on the appeals-court bench -- 10% of the total -- and not many weeks left to fill them before election-year campaigning makes judicial confirmations next to impossible. Seven nominees are currently waiting for a hearing or vote. With Republicans in danger of losing Senate seats, if not their majority, now is the time to honor one of their campaign pledges from 2004 by confirming Mr. Bush's judicial nominees. [The Wall Street Journal, 6/7/06]

WSJ Previously Criticized Democrats For “Denying An Elected President The Ability To Fill Out Even The Lower Courts.” A May 2005 Wall Street Journal editorial on judicial filibusters blasted Democrats for committing “political escalation” by blocking Circuit Court judges:

It's a shame it has come to this. But at this point it would be worse if Republicans let a willful minority deny the President's nominees a vote on the Senate floor.


With the filibuster, Democrats are denying an elected President the ability to fill out even the lower courts.

They are going to such bitter lengths, we suspect, precisely because they view the courts as their last hold on federal power. As liberals lost their majority status over the past 30 years, they have turned increasingly to the courts to implement their political program. If Democrats succeed in blocking these nominees, they will feel vindicated in their view that judicial activism pays. They will also conclude that Senate obstructionism works, and so will dig in for more of it. [The Wall Street Journal, 5/16/05]

Legal Experts, Including Chief Justice John Roberts, Have Explained The Importance Of The DC Circuit

Chief Justice John Roberts: D.C. Circuit Has A Heavy Federal Caseload. In 2006, Chief Justice John Roberts explained the uniqueness of the D.C. Circuit Court and its workload:

It is when you look at the docket that you really see the differences between the D.C. Circuit and the other courts.  One-third of the D.C. Circuit appeals are from agency decisions.  That figure is less than twenty percent nationwide.  About one-quarter of the D.C. Circuit's cases are other civil cases involving the federal government; nationwide that figure is only five percent.  All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide. [Constitutional Accountability Center, 4/17/13]

Former D.C. Circuit Chief Judge Wald: “Congress Is Systematically Denying The Court The Human Resources It Needs To Carry Out Its Weighty Mandates.” Patricia M. Wald, who served on the D.C. Circuit Court of Appeals for 20 years and as its chief judge for five years, described the problem with the court's vacancies in a February 28 Washington Post op-ed:

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 has 11 judgeships but only seven active judges. There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.

The court's vacancies date to 2005, and it has not received a new appointment since 2006. The number of pending cases per judge has grown from 119 in 2005 to 188 today.A great many of these are not easy cases. 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. [The Washington Post, 2/28/13]

Obama's Judicial Nominees Have Faced Unprecedented Obstruction

Congressional Research Service Report Demonstrated Significant Increase In Confirmation Time For Circuit Court Nominees From Bush To Obama Administrations. The Constitutional Accountability Center stated that a Congressional Research Service analysis of judicial confirmations since President Reagan found that President Obama's Circuit Court nominees faced a far longer wait time for confirmation than President Bush's nominees:

In a report issued by the Congressional Research Service on May 2, 2013 analyzing and comparing the Senate fate of President Obama's lower court nominees with those of all Presidents since Ronald Reagan (during their first terms), CRS confirmed what Constitutional Accountability Center has been saying for years - that Senate Republicans' obstruction of President Obama's judicial nominees during his first term has been unprecedented.


For example, according to the CRS report, which among other things examined the time from Committee vote to confirmation vote for those nominees who were unopposed in Committee and on the floor, it took less than a month (29.3 days) on average for President George W. Bush's unopposed Circuit Court nominees to be confirmed after being voted out of Committee.  That average time to confirmation skyrocketed during President Obama's first term to more than four months (124.7 days). [Constitutional Accountability Center, 5/6/13]

People For The American Way: D.C. Circuit Facing Higher Workload Than Other Appeals Courts. People For the American Way created infographics which illustrate how the D.C. Circuit Court faces a higher workload now than it did during the Bush administration:

Pending cases in D.C. Circuit Court

D.C. Circuit Cases Per Active Judge

[People For the American Way, accessed 7/25/13]

To see previous examples of The Wall Street Journal encouraging Republicans to deny President Obama's D.C. Circuit nominations, click here, here, and here.