The Wall Street Journal is endorsing Republican Sen. Chuck Grassley's absurd claim that the U.S. Court of Appeals for the D.C. Circuit doesn't need to fill its judicial vacancies, a position the senator didn't take when he was helping confirm former President George W. Bush's right-wing judges.
Despite the newspaper's own reporting on the rampant GOP obstructionism that has prevented President Obama from easing the judicial emergencies caused by vacancies in the federal courts, the editorial page of the WSJ continues to applaud Republican filibusters of the president's nominations.
The most recent example is the WSJ's stamp of approval for Grassley's disingenuous proposal to reduce the number of non-senior seats on the D.C. Circuit from 11 to eight, thereby preventing the current Democratic president from nominating judges to this appellate bench considered second in importance only to the Supreme Court. From the editorial:
It's good to be the king. When the federal courts overturn your Administration's rules or find decisions unconstitutional, you can pack them with judges more likely to rule your way. That seems to be the working theory at the White House, where word is that President Obama is close to nominating several new judges to sit on the D.C. Circuit Court of Appeals.
The court doesn't need the judges. The D.C. Circuit is among the most underworked court in the federal system. Lawyers can under most statutes now bring challenges to federal agencies in either the D.C. or a local circuit. Liberals prefer the Ninth Circuit, while conservatives used to favor the Fourth but might now choose the Fifth. In any case this means fewer cases for D.C.
Last year the D.C. Circuit saw 108 appeals per authorized judge, compared to roughly four times as many on the Second and Eleventh Circuits--the country's busiest. And the court's workload is trending down. Even if the court had only eight authorized judges, its docket would still be among the lightest in the country.
Mr. Obama ought to settle for adding [recent nominee and Principal Deputy Solicitor General Srikanth “Sri” Srinivasan] to the court. If he insists on trying to pack it, Republicans should just say no.
The editorial - like Grassley's plan - is extremely inaccurate, merely another transparent excuse to justify the relentless and unprecedented Republican filibusters of President Obama's judicial nominations.
Describing the D.C. Circuit's docket as "among the lightest" in the country is wildly erroneous as it arguably has the most complex caseload in the country. Owing to its exclusive jurisdiction over many complicated areas of administrative law, the D.C. Circuit hears the vast majority of challenges to government action on issues ranging from labor relations to environmental law to voting rights. These cases are immensely complicated and time-consuming, which is why informed experts do not use the irrelevant statistics the WSJ is pushing. As explained by its former Chief Judge, Patricia M. Wald:
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.
Judith E. Schaeffer, vice president of the Constitutional Accountability Center, immediately noted the same when Grassley floated a bill that would codify his blatant "reverse court-packing" scheme, adding that Republican-nominated Chief Justice of the Supreme Court John Roberts - another D.C. Circuit alum - has also publicly debunked his claims. Furthermore, Schaeffer points out that the seats Grassley now proposes eliminating were the exact same seats he happily helped fill with right-wing ideologues nominated under Bush:
We immediately blasted this proposal for the partisan sham that it is: a “mass filibuster” of President Obama's future nominees to this critical circuit court. Senator Grassley's bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic President fill those three vacancies on the D.C. Circuit. The “workload” argument is a smokescreen. As Judiciary Committee Chair Patrick Leahy has observed, Senator Grassley and his Republican colleagues had no problems in 2005 confirming G.W. Bush nominees Janice Rogers Brown and Thomas Griffith to fill the 10th and 11th seats on the D.C. Circuit when the caseload per active judge was less than it is now.
That Senator Grassley's proposal to eliminate the 9th, 10th, and 11th seats on the D.C. Circuit is a partisan ploy is evidenced not only by the numbers but also because it is not based on any study and in fact ignores recent recommendations of the Judicial Conference to Congress regarding the number of judgeships on the federal courts.
It was these Grassley-approved Republican nominees and retirements that have further skewed the D.C. Circuit rightward in its decision-making, yielding radical decisions striking down progressive legislation and regulation. Not only is the WSJ once again cheerleading for these opinions, it also misleadingly claims the appellate court would be "split 4-4 among active judges nominated by Democratic and Republican" if Srinivasan is confirmed. But the WSJ ignores the fact that the D.C. Circuit, in addition to the 11 seats targeted, has “senior status” judges who are “active” as well and entirely eligible to hear panel cases. Of those judges, five out of six are Republican nominees, which explains the highly conservative nature of the D.C. Circuit's current jurisprudence.
Finally, a crucial reason for why Srinivasan may actually be confirmed is that after the failure to overcome the filibuster of the president's last highly qualified nominee to this court, Republican legal luminaries have come out in force to support his nomination. Not that they needed a reason to filibuster, but Srinivasan's potential confirmation may now be the GOP's excuse for closing the doors on any other Democratic nominees for the rest of the president's term. From Kevin Drum's analysis of "why Grassley and his little gang of cosponsors are full of [it]" at Mother Jones:
[T]his has no basis in fact or policy. It's simply another transparent Republican power play designed to maintain their stranglehold on the federal bureaucracy.
But I think it does answer a question. It's possible that Republicans will agree to confirm Sri Srinivasan to the DC Circuit. He'd be the eighth judge, and he's practically a gift to them anyway. But after that they haven't the slightest intention of allowing any further vacancies to be filled. Not by Obama, anyway.