Nuclear Fallout

Anyone who had any doubts of the Democrats real goals on executing the “Nuclear Option” on judges should have no doubts now after the narrow confirmation of Pamela Harris with only 50 votes yesterday.  The Democrats are trying to pack the courts. 

In addition to breaking the rules to change the rules they are also breaking tradition to pack the Circuit Courts to try and influence decisions:

The Senate typically votes on judges in order. That didn't happen with Harris. Senate Majority Leader Harry Reid, D-Nev., brought up Harris' nomination before that of Jill Pryor, who had been waiting for a vote to sit on the Eleventh Circuit. The Senate voted, 50-43, to confirm Harris.

The Fourth Circuit became a key battleground last week over the Obama administration's domestic agenda when a three-judge panel sided with the government in a dispute over health care subsidies. Sen. Chuck Grassley, R-Iowa, took to the floor ahead of the Harris vote to express his dismay about the timing of the confirmation vote.

"Professor Harris is being fast-tracked to the Fourth Circuit, just in time for another en banc appeal, should one materialize," Grassley said.

In a floor statement on Friday, Ranking Judiciary Committee Member Grassley was more explicit:

So, it seems pretty clear to me that the timing of the vote on this nominee is not coincidental.   We know this because of yesterday’s Obamacare decisions handed down by the D.C. Circuit and the Fourth Circuit.

 Last November, when the Majority changed the cloture rule on judicial nominees, I told my colleagues that the decision was a blatant attempt to stack the D.C. Circuit with judges who would view sympathetically the administration’s arguments in upcoming Obamacare lawsuits.

 The other side dismissed the notion that the rules change was designed to tilt the courts in the President’s direction and salvage Obamacare.

Well, as we all know, a three-judge panel of the D.C. Circuit decided the Halbig case yesterday, against the administration.

 And it only took the administration about an hour to announce that it would seek rehearing by the en banc D.C. Circuit, which now includes four of the president’s nominees.

As we all know, the Majority Leader rushed through three of those four immediately after the rules change.  And yesterday the Majority Leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear.

 He said: “I think if you look at simple math, it does.”

So, the Majority Leader isn’t even trying to disguise his intent any more.

 And that’s exactly what’s happening here with this nominee, on her way to the Fourth Circuit.  This nomination is being considered ahead of other circuit nominees on the Executive Calendar.

 Why is this Fourth Circuit nomination being fast-tracked?

 Why fast-track one of the most liberal nominees we have considered to date?

 If history is any guide, the answer is simple.

 It’s all about saving Obamacare.

The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit.  Because the Fourth Circuit hears a disproportionate number significant cases involving federal law and regulations, just like the D.C. Circuit.

And there should be no doubt where Harris stands, it is wherever the party and the left want her to:

As you may remember, Harris is the judicial nominee who thinks the Warren Court wasn’t liberal enough, that the Constitution gets its meaning “from what comes after” its enactment, and who thinks that Supreme Court justices should shift their legal views with the tides of public opinion.

Obama may be a failure as a President but thanks to Harry Reid he is becoming the first President to so blatantly pack the courts.  

Democrats demonstrate shameless hypocrisy in invoking ‘nuclear option’

A decade ago, President Bush nominated super-lawyer Miguel Estrada to sit on the Court of Appeals for the District of Columbia. The Honduran-born Estrada had argued 15 cases before the Supreme Court and had served two presidents, both Republican and Democrat, at the Department of Justice.

But Democrats—worried about the political optics of having a highly qualified Hispanic conservative superstar so close to the Supreme Court—determined to stop his nomination at all costs. Mr. Estrada became the first ever judicial nominee successfully filibustered in the Senate. But he wouldn’t be the last. In total, Democrats would filibuster 10 of George W. Bush’s judicial nominees for the federal bench; five would eventually be confirmed, mostly resulting from the 2005 “Gang of Fourteen” deal.

Now angst-laden Democrats, worried about losing control of the Senate next year, have shattered a decade of uneasy judicial-nominating peace—whereby the Senate confirmed most judicial choices and used the filibuster sparingly.

Senate majority leader Harry Reid (D-NV) evoked the “nuclear option” last week, effectively ending the filibuster and turning the Senate into a mirror image of the majority-rule House for judicial nominations, excepting, supposedly, Supreme Court nominees.

Democrats claim this move will “restore the functionality” of the Senate and cite statistics purporting to show Republican abuse of the procedural tactic. A closer examination, however, shows these assertions to be hypocritical and disingenuous.

First, the Senate was functioning exactly as it should have been. The filibuster has existed in some form or another as a minority protection since the Constitution’s earliest days. Its existence forces compromises and consensus building.

Further, a total of only five of President Obama’s judicial nominees had been filibustered, the exact number as President Bush. And as law professor Jonathan Adler points out, all of these nominations were to the influential DC Circuit and none were considered a judicial emergency. In fact, of the nine such emergencies, only four nominees are currently pending.

And so now Democrats have shamelessly blown up over 200 years of tradition in order to pack the most important circuit court with liberals before they potentially lose the Senate next year. In doing so, they set the stage for a further deterioration and poisoning of the political climate in Washington and have set a precedent they may very well regret four years from now. 

This post was authored by Paul Jossey.   

Did Reid go Nuclear for Nuclear Waste?

By US Senate standards Senate Majority Leader Harry Reid’s maneuver to execute the Nuclear Option and limit debate on judicial nominees by an unprecedented rules change was explosive and sudden.  It happen one afternoon quickly as the Senate was getting out of town for Thanksgiving.  Why did Reid do it so suddenly?

While allowing President Obama’s agenda to pack the DC Circuit was certainly part of it, another reason may have been more personal. 

No, the reason why we locals ought to despise Reid's latest move is because it will facilitate his campaign to block the construction of a safe, permanent repository under Yucca Mountain in his home state of Nevada for dangerous spent fuel from nuclear power plants located in Illinois and elsewhere.

As a freshman senator in 1987, Reid fought against the project with — you guessed it — a filibuster. It proved unsuccessful, but now that he has ascended to majority leader, he's not shy about using his power to block the Yucca project. Mind you, this is the guy who reminds us that Obamacare "is the law," so it must be implemented, even though Congress likewise passed a law designating the Yucca Mountain site as the nation's repository.

Still, Reid and Obama have their hands full. Recently, a three-judge panel of the U.S. Appeals Court in Washington, D.C., ordered, 2-1, the administration to proceed with the project on the grounds that the president can't simply "flout" the law. You might see a pattern here, in that this is the president who thinks he can unilaterally change the Obamacare law by putting off an insurance mandate until after the 2014 elections.

Just a week ago, the court also ruled that if the Energy Department has no plans to proceed with the Yucca project, it then has no good reason to keep collecting the money that we have been paying through our electric bills to build the project. Money that the Obama administration wanted to continue collecting.

So, now comes Reid clearing the way for Obama to pack that court with his appointees. Among the things the court could do that would please Reid is to rehear the Yucca case. With an Obama majority on the court, the case could be reheard en banc, in which the entire bench might overturn the ruling by the three-judge panel.

A former leader on the Nuclear Regulatory Commission wrote me in a private email more about Reid’s decision and background on this issue.

Last Tuesday the DC Circuit issued the third decision in the last eighteen months upending Senator Reid’s campaign to block construction of the national nuclear waste repository in his home state. The unanimous “fee adequacy" decision by three Republican Judge’s on the DC Circuit, followed a decision last summer where the court issued a “Mandamus” ordering the Nuclear Regulatory Commission (NRC) to continue processing the Yucca Mountain license application. That decision had been preceded by one striking down NRC’s gerrymandered “waste confidence” rule, which NRC had issued to paper over the Administration’s cancellation of the Yucca project, and has since halted all nuclear license applications pending NRC submitting a NEPA compliant confidence rule.

In Reid's post vote press conference on the Senate Rules change, he prominently cited the DC Circuit as a central issue in his decision to launch the filibuster “nuclear option.” He commented that a Republican colleague offered to allow the DC Circuit bench to be occupied by a five to four ratio; an offer Reid rejected. What elevated the DC Circuit ahead of all the other contentious issues before the Senate; why else would Reid be talking with a Republican about the DC Circuit, to the extent that the Republican would respond with such an offer? My guess, Tuesday’s decision was the tipping point (Senator Durbin used that term - "we’ve reached the tipping point"). Is Reid attempting to put the court on notice; don’t mess with Yucca Mountain.

So we have a situation where both President Obama and Senate Majority Leader Harry Reid are attempting to pack the DC Circuit to get around a court and laws they do not like. 

The Hypocrisy is Nuclear

Liberal and Democrat hypocrisy on the Senate filibuster is, well, nuclear.  The RNC has this excellent page of videos of then Democrat Senators -- including Obama, Biden, Clinton and, of course Harry Reid -- opposing any changes to the filibuster.  But what is the issue?  National Review explained it this way?

What is the filibuster? It is “a time-honored Senate procedure that prevents a bare majority of senators from running roughshod,” according to our friends on the New York Times editorial page. But that was in 2005, when Republicans frustrated over Democratic filibusters of President George W. Bush’s judicial nominations were (with National Review’s support) considering the so-called nuclear option, the overblown name of which suggests that it is rather more than a change in the Senate’s procedural rules. The Times denounced the Republicans’ “rank hypocrisy” in 2005, as did any number of Democrats. Having reversed themselves at the dictates of convenience, they show themselves to be hypocrites on the matter at hand and also on the subject of hypocrisy — call it hypocrisy squared.

The Democrats here are helping themselves to ill-gotten gains. Using the filibuster and other stalling techniques, they kept judicial vacancies open by closing them to Bush nominees. Miguel Estrada was kept off of the D.C. Court of Appeals by a filibuster; Democrats refused to process John Roberts’s nomination to the same court (to succeed James Buckley, the gentleman previously known in these pages as the sainted junior senator from New York). Later, when Roberts was named to the Supreme Court, Democrats blocked George W. Bush’s nominee for his replacement, Peter D. Keisler. Roberts’s earlier nomination advanced only after Republicans took control of the Senate, something that Harry Reid in his hubris seems to think will never happen again.

As Curt Levey explains despite the Democrats then unprecedented filibusters of Republican nominees:

When Senate Democrats originated the practice of filibustering judicial nominees during George W. Bush’s presidency, Republicans were tempted to use the nuclear option to kill the judicial filibuster and approve nominees with a simple majority vote. But after much debate and hand-wringing, Republicans decided that short-term expediency could not justify destroying the filibuster, a tradition that for centuries made the Senate a more deliberative and bipartisan body than the House.

Republicans may not be faultless on this issue but they are not the hypocrites that the Democrats are.  However, this is a much deeper problem than hypocrisy, it is an effort to pack the courts to protect and enlarge President Obama’s illegal agenda.  The Democrats will soon try to add three completely unnecessary judges to the DC Circuit.

In fact, look at the numbers from the Administrative Office of the U.S. Courts. In 2006, written decisions per active judge had declined by 17 percent since 1997. Since 2006 they have declined another 27 percent. In 2006, the total number of appeals filed had declined by 10 percent since 1997. Since 2006 they have declined another 18 percent. The Administrative Office ranks the twelve circuits using various caseload benchmarks: 2013 is the 17th straight year that the office has ranked the D.C. Circuit last on both appeals being filed and appeals being terminated. There simply is no need for more judges on the D.C. Circuit when those there now do not have enough to do — unless, of course, the aim is to have a bench more sympathetic to rule by presidential diktat, which may be precisely why Senator Reid wants to go nuclear.

Democrats are acting like they will never be in the minority again.  Well not all Democrat Senators.

The Senate’s red-state Democrats, who can no longer hide behind cloture votes and will now be forced to openly support or oppose Obama’s most radical judicial nominees, have a lot to lose from Reid’s brazen move. It is no coincidence that Senator Mark Pryor (D., Ark.), who is facing a tough reelection fight, voted with Republicans today after facing a barrage of ads tying him to Obama’s worst judicial appointments. Opponents of other red-state Democrats running for reelection next year — Landrieu, Hagan, and Begich for example — will surely take note.

I am worried about the consequences of killing the judicial filibuster. But I am also hopeful that it marks a return to the political dynamics of a decade ago, when Karl Rove said, “There’s no doubt in my mind that we won races all throughout the country [on the judges issue].” 

And if the Republicans take the Senate back:

Conservatives have more of a stake than liberals do in the legislative filibuster as a check on the political passions of the moment. But the Democrats who rewrote Senate rules on Thursday should also understand that they have now opened the door to repeal ObamaCare with only 51 votes.

Here’s to hoping Harry Reid and President Obama pay a heavy price in the 2014 elections. 

Obomination: Even Liberals Think the Democrats Went Too Far with Nuclear Option

Yesterday Democrat Senate Majority Leader Harry Reid broke the Senate rules to change them by executing the so-called nuclear option.  Senator Reid did this based on a lie that President Obama’s nominees were being blocked at “unprecedented” levels.   The truth is President George W. Bush's nominees were treated worse. 

Even liberal columnists at the Washington Post are upset at Reid’s unprecedented maneuver to pave the way for President Obama’s DC Circuit power grab to advance his agenda. 

Ruth Marcus in an article writes “In filibuster fight, the Democrats go too far”:

Judges are different, and this is where the Democrats erred. Their move — unlike previous proposals — eliminated the filibuster except for Supreme Court nominees. The simple reason for subjecting judicial nominees to a higher hurdle for approval: lifetime tenure.

This is not to argue that filibusters should be routine or that Republicans were justified in the frequent deployment of a tactic they once denounced. But there are circumstances, even outside the context of the Supreme Court, in which a judicial nominee might be so outside the mainstream or otherwise unqualified that filibustering would be justified.

Republicans will be empowered to pick more conservative judges, Democrats more liberal ones. Perhaps this will make for a more vibrant judiciary. I fear it will create one that is more polarized and possibly less well-qualified.

The rules change also marks a fundamental and unappreciated shift of power from the Senate to the executive branch. Would the Senate now be weighing the nomination of Larry Summers for Federal Reserve chairman if the new rules had been in place? Have senators fully thought this through?

Another Post columnist Dana Milibank quotes Democrats in “The Democrats’ Naked Power Grab”:

 [Biden in 2005:] “The nuclear option abandons America’s sense of fair play . . . tilting the playing field on the side of those who control and own the field. I say to my friends on the Republican side: You may own the field right now, but you won’t own it forever. I pray God when the Democrats take back control, we don’t make the kind of naked power grab you are doing.”

Sen. Carl Levin (Mich.), one of just three Democrats who opposed his colleagues’ naked power grab, read those words on the Senate floor Thursday after Reid invoked the nuclear option. The rumpled Levin is not known for his oratory. But he is retiring next year and free to speak his mind — and his words were potent.

“We need to change the rules, but to change it in the way we changed it today means there are no rules except as the majority wants them,” Levin said. “This precedent is going to be used, I fear, to change the rules on consideration of legislation, and down the road — we don’t know how far down the road; we never know that in a democracy — but, down the road, the hard-won protections and benefits for our people’s health and welfare will be lost.”

The word “historic” is often tossed around in Washington, but this change ends a tradition dating to the earliest days of the republic. For the nation’s first 118 years, there were no limits on debate in the Senate. After 1917, cutting off debate, or reaching “cloture,” required a two-thirds majority. In 1975, that threshold was reduced to 60 of 100 votes. Even that lower minimum required lawmakers to cooperate with each other.

Senate Democrats with President Obama’s permission killed bipartisanship yesterday.  Some red state Democrat Senators will pay the price in 2014. 

Shameless Democrats Trying to Use Courts to Detract From Obamacare Crisis

Yesterday the Republicans in the Senate blocked the third unnecessary nominee to the DC Circuit.  This is all for an ongoing effort at court packing for a circuit that does not judges.  However, the real reason for this fight happening right now is coming out.  As Senator Grassley said yesterday on the floor:

There is no crisis on the D.C. Circuit, because they don’t have enough work to do as it is.

But there is a crisis occurring right now all across this country as a result of Obamacare.

 . . .  Here is how the Roll Call newspaper described the strategy:  “Senate Democrats . . . are readying their next assertive moves on three other issues important to their base: Abortion rights; Minimum wage; [and the] Federal judiciary.  The goal is to divert as much attention as possible away from the problem-plagued Obamacare rollout.”

So, let me get this straight.

Right now, a crisis is unfolding all across this country as millions of Americans are losing their health insurance because of Obamacare.

Yet, the Democrats’ strategy is to conceal the Obamacare crisis by using the D.C. Circuit as a smokescreen.

 . ..  So, to sum up:

-Even though the judges themselves say, “if any more judges were added now, there wouldn’t be enough work to go around;”

-Even though we shouldn’t fill these seats based on the Democrats’ standard from 2006;

-And, even though filling these seats would waste $3 million per year in taxpayer money that we don’t have;

The other side is bent on manufacturing a crisis for cynical political reasons.

 

Well said Senator Grassley.  Shame on you Senate Democrats.  

Republican Senators Stop Democrat Efforts to Politicize the Courts

Republican Senators held strong in their efforts to stop court packing by President Obama for the DC Circuit yesterday as far left law professor Nina PIllard's cloture vote failed. 

Knowing that an argument on the merits of either the need for another judge on the under worked DC Circuit or on Ms. Pillard where dubious at best, Democrats instead tried to play the gender card. 

Democrats used Tuesday's vote to assail Republicans for opposing female nominees to the D.C. circuit. Republicans have blocked votes on two other Obama nominees to the same court this year, attorneys Patricia Millett and Caitlin Halligan.

. . .

Iowa Sen. Charles Grassley, top Republican on the Judiciary panel, called such arguments "offensive," adding that Democrats' "last line of defense is to accuse Republicans of opposing nominees based upon gender or race."

Kudos to Senator Grassley for his leadership on this issue. 

Senate Democrats are not done on their efforts to pack the DC Circuit.  Since Republicans won't be intimidated by playing the gender card, Senate Democrats are now threatening to blow up the Senate and destroy the rights of the minority party; all to support President Obama's effort at court packing.

Tuesday's vote prompted Democrats to threaten anew to unilaterally rewrite Senate rules to make it harder for the chamber's minority party to block nominations. Democrats could do that by curbing a minority's ability to require 60 votes to end procedural delays called filibusters.

Of course the Democrats true motive for this fight right now has an additional not- too-transparent political element.

Senate Minority Leader Mitch McConnell, R-Ky., called the Pillard vote "a political exercise designed to distract the American people from the mess that is Obamacare," a reference to major enrollment problems with the 2010 health care law.

This sums up the problem.  Judges are not political tools.   Thank you to Senate Republicans for standing up to Democrat efforts to make them into exactly that. 

A Tale of Two Senators on Judges and Court Packing

Democrat Senator Mark Pryor of Arkansas is in trouble for his reelection and one of the reasons is his towing of the Democrat party line on judicial nominees.

Sen. Mark Pryor’s vote in favor of Obamacare, without which that legislation would not have passed the Senate, should be enough to cause his defeat in the 2014 Arkansas race Senate. And, at the end of the day, I suspect it will be.

However, there is also the matter of President Obama’s judicial nominees. Pryor has not voted against the confirmation of a single one. Not even far left-winger Goodwin Liu, whom the Senate did not confirm.

To be sure, a respectable school of thought holds that the U.S. president should have his judicial nominees confirmed without regard to their ideology, especially when we’re talking about a lesser court than the Supreme Court. But Pryor does not hold this view. He voted to sustain the filibuster of Miguel Estrada’s nomination. Even the Washington Post found that a vote to confirm Estrada was “an easy call.”

The Judicial Crisis Network has gone after Pryor for this, especially in light of the current court packing controversy.  Here is the ad. 

The funny part came when Senator Pryor responded to the ad. 

Mark Pryor’s office has circulated this document in response to the video, explaining that he did not vote for three of President Obama’s judicial nominees. Well, he ain’t a lawyer for nothin’. Each of the three votes cited by his office involved nominations for which he didn’t vote at all, and which were confirmed without opposition.

Sheri Chappell: 90-0 (Pryor did not vote)

Edward Davila: 93-0 (Pryor did not vote)

Joseph Greenaway: 84-0 (Pryor did not vote)

In other words, every single time Senator Pryor voted on a judicial nominee, his vote was to support President Obama, and he does not deny that fact. Or, to put it another way: He has never voted against one of President Obama’s judicial nominees. None. Zero.

Senator Orrin Hatch exposes Democrat hypocrisy on the issue and the importance of fighting against President Obama’s court packing efforts. 

Democrats opposed more Republican D.C. Circuit appointments in 2006 because "written decisions per active judge" and "total number of appeals filed" had declined. Since then, these benchmarks have declined by 27 percent and 18 percent, respectively. D.C. Circuit Chief Judge Merrick Garland confirms that cases scheduled for argument per active judge have also declined by 11 percent since then. According to the Administrative Office of the U.S. Courts, the D.C. Circuit ranks last among all circuits in new appeals coming in and resolved appeals going out. Democrats also opposed more Republican D.C. Circuit appointments in 2006 because judicial emergency vacancies had not been filled. Judicial emergencies have increased by 90 percent since then, and the percentage of those vacancies with nominees has declined from 60 percent to only 47 percent.

So what explains these unnecessary nominations? President Obama said after his re-election that he is not going to wait for Congress to act, but will take unilateral executive action to implement his agenda. The D.C. Circuit, more than any other, reviews decisions and actions by the executive branch agencies implementing that agenda.

It is no wonder, then, that the Senate majority leader has said that he wants to "switch the majority" on the D.C. Circuit. One liberal activist told The Washington Post that "the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit."

. . .The better course would be to put his agenda before the American people by putting it through Congress and to appoint judges to courts that really need them.

The problem with putting the agenda before the people is that, like Senator Pryor, it is likely to lose.  Thank you to Senator Hatch and other Republican Senators for standing strong against President Obama’s efforts to pack the DC Circuit. 

Obomination: Republicans Stop First Effort at Court Packing

Yesterday Senate Republicans successfully stopped President Obama’s attempt at court packing by voting against cloture for the first of three unnecessary judges to the DC Circuit.  As has been laid out here and other places multiple times, there is no need for more judges on the DC Circuit.  So why is this effort taking place?

As Senate Republican Leader Mitch McConnell put it (emphasis ours):

“So if the court’s caseload clearly doesn’t meet their own standards for more judges, why are Senate Democrats pushing to fill more seats on a court that doesn’t need them?

“What’s behind this push to fill seats on a court that is cancelling oral argument days for a lack of cases and which, according to the judges who serve on it, won’t have enough work to go around if we do?

 “Well, we don’t have to guess.  Our Democratic colleagues and the Administration’s supporters have been fairly candid about it.  They have admitted they want to control the court so it will advance the President’s agenda.

 “As one Administration ally put it, ‘the president’s best hope for advancing his agenda is through executive action, and that runs through the D. C. Circuit.’

“Let me repeat, the reason they want to put more judges on the D.C. Circuit is not because it needs them, but because ‘the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.’

As Republican Leader McConnell further detailed, this is not some biased Republican or conservative effort.  The DC Circuit is evenly divided and rule against President Bush as well. 

“Another Administration ally complained that the court ‘has made decisions that have frustrated the president’s agenda.’ 

“Really?  The court is evenly-divided between Republican and Democratic appointees.

“And according to data compiled by the federal courts, the D.C. Circuit has ruled against the Obama Administration in administrative matters less often than it ruled against the Bush Administration.

 “So it’s not that the court has been more unfavorable to President Obama than it was to President Bush.  Rather, the Administration and its allies seem to be complaining that the court hasn’t been favorable enough to it.

“Evidently, they don’t want any meaningful check on the President.  You see, there is one in the House of Representatives, but the Administration can circumvent that with aggressive agency rulemaking.  That is, if the D.C. Circuit allows it to do so.

“Mr. President, a court should not be a rubberstamp for any administration.  And our Democratic colleagues told us again and again during the Bush Administration that the Senate confirmation process should not be a rubberstamp for any administration either.

On behalf of RNLA and more importantly the rule of law, thank you leader McConnell and your fellow Republican Senators for stopping President Obama’s efforts at court packing. 

Court Packing Effort to Get Around Law v. Republican Efforts to Help the Courts

Democrats cry partisanship and Democrat Majority Leader Harry Reid is charging “obstructionism” over Republicans opposition to President Obama’s effort to pack the DC Circuit.  President Obama’s motives could not be clearer as we have written previously. 

Of course Harry Reid’s charges could not be more wrong as well.  As opposed to being “obstructionist” Republicans have proposed a common sense solution:  move the unneeded DC Circuit judgeships to where they are needed.

Senator Grassley’s compromise legislation prevents the politicization of the D.C. Circuit. It would transfer judgeships from the D.C. Circuit, where they are not needed, to circuit courts that need them. Under this proposal, one judge would be transferred immediately from the D.C. Circuit (the court with the lowest workload) to the Second Circuit and one judge to the Eleventh Circuit. President Obama would still be able to appoint these two judges to courts where they are needed – unlike past legislation deferring appointment to the next President.

The design of this legislation has recent precedent: Senate Republicans transferred one D.C. Circuit judgeship to the Ninth Circuit in 2007 (with an effective date of January 2009, when President Bush would not be able to make an appointment). Senators Feinstein and Kyl argued at the time for the need to correct over-authorization of D.C. Circuit judgeships by providing those judgeships to the deficient Ninth Circuit.

Hardly sounds like obstruction. 

Of course, Reid does not care that he is a hypocrite and completely wrong on Republicans motives. 

In 2006, Senate Democrats argued the D.C. Circuit’s workload did not warrant more judges. Back then, they insisted on a standard based on the court’s workload and relied upon it to block a Bush Administration nominee for nearly 1,000 days. Now they seek to abandon that standard to fill the court with nominees to their liking.

Using the same measurements Democrats used to block appointments – written decisions per active judge and total number of appeals filed – President Obama’s current nominees are unnecessary. According to data from the Administrative Office of the U.S. Courts, the number of written decisions per active judge on the D.C. Circuit has decreased by almost 27 percent since 2005, and the total number of appeals filed has decreased by 18 percent during that time.

So will Democrats relent or will they push to pack the DC Circuit to promote their political agenda? 

AGs Join the Fight Against President Obama's Court Packing Effort

Groups like the Judicial Crisis Network have laid out the case that President Obama is trying to pack the courts with his unprecedented and completely unnecessary three nominees to the DC Circuit.  Now the importance and the need to stop this effort has spread to the states.  Leading Attorneys General from across sent a letter yesterday to the U.S. Senate in agreement which states in part:

Indeed, it is impossible not to conclude that this is a court-packing scheme when the uncontroverted facts show that there are many circuits whose need for additional judges far outweighs that of the D.C. Circuit.  According to data from the Administrative Office of the U.S. Courts, last year the D.C. Circuit had 108 total appeals filed per authorized judgeship, while the national average was more than three times higher. In 2005 there were 1,379 appeals filed in the D.C. Circuit, but by last year that number had decreased by more than 13%, to the lowest for all federal appellate courts.

Ironically it is not just neutral statistics that show the lack of need for additional judges on the DC Circuit, it is the judges themselves of the DC Circuit who say they do not need more help. 

In response to questions about the court’s workload, Chief Judge Merrick Garland recently provided the Senate Judiciary Committee with data indicating that the number of consolidated cases scheduled for oral argument per judge has been in steady decline, from 99 in 2003-2004, to 81 in 2012-2013. By virtually every measure, the D.C. Circuit is either last or nearly last when it comes to workload.

It is no wonder that even the D.C. Circuit’s judges have explained that they do not need additional colleagues. One judge recently informed the Senate Judiciary Committee that “[i]f any more judges were added now, there wouldn’t be enough work to go around.”3 Another judge wrote that “each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.”

It is especially significant that Judge Merrick Garland writes the above as according to most legal experts he was on President Obama’s short list for the Supreme Court.  For Judge Garland to be opposed is significant. 

The facts and statistics lead the Attorneys General to come to a strong conclusion to this serious problem:

 

Using judicial vacancies to promote a political agenda undermines the rule of law and threatens to erode public confidence in our courts—something that Republicans and Democrats alike should seek to avoid. And in a time where judicial resources are scarce, and getting scarcer, the Congress should take seriously its obligation to allocate those resources where most needed. For these reasons, we urge you to reject President Obama’s nominees to the D.C. Circuit. 

There is no need for more nominees to the DC Circuit and President Obama’s attempt at court packing must be stopped. 

Obomination: Court Packing

According to dictionary.com “court packing” was “an unsuccessful attempt by President Franklin D. Roosevelt in 1937 to appoint up to six additional justices to the Supreme Court, which had invalidated a number of his New Deal laws.”  Now President Obama is seemingly trying to do the same thing on a smaller scale with the DC Circuit.  As Hans von Spakovsky and Elizabeth Slattery of Heritage explain:

Why, then, is Mr. Obama pushing for more judges on the D.C. Circuit? The answer is pretty clear. The D.C. Circuit has ruled against the president’s agenda in several high-profile cases in recent years. Most notably, the court invalidated a rule applying the Dodd-Frank financial reform law, overruled a burdensome Environmental Protection Agency rule regulating cross-state power-plant emissions, and ruled Mr. Obama’s sham “recess” appointments to the National Labor Relations Board were unconstitutional. It’s no surprise that Mr. Obama is trying to improve his chances before the court by packing it with judges whom he thinks — rightly or wrongly — will rubber-stamp his policies.

As if that is not bad enough President Obama is ignoring his duty to other circuits who unlike the DC Circuit have judicial emergencies (about half of which do not have a judge nominated to fill the slot) that could use additional judges.  The lack of need for additional judges on the DC Circuit has long been noted by Republicans and Democrats.  Von Spakovsky and Slattery note:

In fact, there is such a lack of need for more judges in the D.C. Circuit that in 2006, eight Democratic senators, led by Patrick J. Leahy of Vermont and Charles E. Schumer of New York, sent a letter to then-Sen. Arlen Specter, who at the time was Republican chairman of the Senate Judiciary Committee, asking for a postponement of the confirmation hearing for one of President Bush’s nominees to that court (who was never confirmed) because the court’s low workload “did not warrant” more judges. They pointed out that, since 1997, “by every relevant benchmark, the caseload for that circuit has only dropped further.” Since then, the D.C. Circuit’s workload has dropped even more.

Court packing was not appropriate during the desperate times of the Great Desperation and it is certainly not appropriate now.  For more details and statistics go here.  Shame on President Obama for ignoring his duty to other circuits in order to nominate judges to the DC Circuit in an effort to promote his illegal agenda. 

Cornelia Pillard's Extreme Views on Abortion

Cornelia Pillard, a Georgetown law professor who President Obama has nominated to the U.S. Court of Appeals for the District of Columbia Circuit, will appear at a nomination hearing before the Senate Judiciary Committee today.  There can be no doubt that she is a staunch Democrat.  An OpenSecrets.org article reveals that Pillard made significant contributions to Obama’s presidential campaigns and to other Democratic candidates. 

Pillard, like Justice Ginsburg, believes women need abortion to be equal citizens.  In her view, the Equal Protection Clause can and should be used to enshrine the abortion right in the Constitution.  You see, even abortion advocates understand that Roe v. Wade stands on shaky ground and are looking for a way to keep abortion legal, without restriction, forever.  This view is certainly out of the mainstream.

In her 2007 article, she argues that “[a]ntiabortion laws and other restraints on reproductive freedom not only enforce womens’ incubation of unwanted pregnancies, but also prescribe a ‘vision of a woman’s role’ as mother and caretaker of children in a way that is at odds with equal protection.”  Cornelia T. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 946 (2007).   

Tony Perkins of the Family Research Council calls attention to one of Pillard’s most shocking arguments against the “deceptive images of fetus-as-autonomous-being that the anti-choice movement has popularized since the advent of amniocentesis.” Id. at 990 (emphasis added).  As Americans United for Life’s William Saunders and Mary Harned point out, what is deceptive about an ultrasound? 

Given her extreme views on abortion, as a judge she would likely use the Equal Protection Clause to strike down bipartisan measures to restrict abortion such as parental notification, partial birth abortion, and abortion clinic regulations.  In 2012, she spoke on a panel with Justice Ginsburg, arguing for a stricter level of review of gender-based classifications, which she would apply to abortion regulations.  Cornelia T. Pillard, Nina Totenberg, Justice Ruth Bader Ginsburg, Emily Martin, Earl Maltz & Jacqueline A. Berrien, Panel: Reed v. Reed at 40: Equal Protection and Women's Rights, 20 Am. U.J. Gender Soc. Pol'y & L. 315-344 (2012).  This is the end game for Pillard and her fellow feminists: use the Equal Protection Clause to strike down any common sense restriction on abortion.       

As I discussed in my law review note, there is simply no constitutional basis to use the Equal Protection Clause in this manner.  Mary Catherine Wilcox, Why the Equal Protection Clause Cannot ‘Fix’ Abortion Law, 7 Ave Maria L. Rev. 307 (2008).  It flies in the face of Supreme Court precedent, which Pillard has argued against.  Erika Bachiochi also makes this point in her 2011 article and demonstrates that if Pillard had her way, women would be worse off.  Erika Bachiochi, Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harv. J.L. & Pub. Pol’y 889 (2011). 

 

In conclusion, Pillard’s own writings demonstrate that she would take judicial activism to a whole new level to impose her liberal feminist views on the rest us.  Let’s hope the Senate Judiciary Committee does not let this happen.

Shameless Political Ploy in Recent Judicial Appointments

Yesterday, President Obama announced the nominations of Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins to fill three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. The announcement is another shallow ploy by the Obama administration to pack arguably the second most powerful court in the country when it is clearly not necessary.

           

Congress has authorized 11 judgeships for the D.C. Circuit, but the court is not busy enough to justify all of these positions. Other circuits have a heavier workload such as the 2^nd and 11^th Circuits, which Senator Chuck Grassley the Ranking Member of the Senate Judiciary Committee has attempted to address with proposed legislation to move these D.C. Circuit positions to places where they are needed. He has also proposed to eliminate one of the positions. In a released statement Senator Grassley said:

“It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.  No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload. There were nearly 200 fewer appeals filed in the D.C. Circuit in 2012 than in 2005.  In fact, the amount of cases that each active judge handles is nearly the same, despite having two fewer judges, in that same time frame.  It’s hard to imagine any reason for three more judges, no matter who nominates them.”

Additionally, the Judicial Conference, the policy-setting body of the federal courts, has suggested that another court, the 9th Circuit, is the busiest in the nation.

The conference has recommended that the San Francisco-based court receive four new permanent judgeships, a recommendation based on factors including “filings per panel, the mix of cases, the proportion of oral hearings versus submission of briefs, the contributions of senior judges and the geography of the circuit,” according to a spokesman for the federal courts.

With all of these judicial needs in other circuits why is the President addressing the least busy of the circuits with three new appointees? The reasoning might be that the White House has recently been frustrated by key decisions by the D.C. circuit against Obama's agenda. The circuit overturned the administration's regulation clamping down on power plant pollution that crosses state lines, rejected its attempt to require large graphic health warnings on cigarette packages and found that Obama exceeded his power in bypassing the Senate to make recess appointments.

This leads to speculation that Obama is trying to circumvent Congress as he attempts to pack the court. Senator Grassley, remarked that:

“News reports have claimed over and over that the White House wants to put more of their own judges on the D.C. Circuit because President Obama is looking for ways to circumvent Congress.  My Democratic colleagues have made their intentions clear when they said the President needed to fill the court by whatever means necessary and that the D.C. Circuit was ‘wreaking havoc’ on the country by opposing their policies. Those who advocate for this type of court-packing to obtain an advantage in public policy debates, misunderstand the purpose of the legislative and judicial branches of our federal government.  It’s our job to make legislative decisions and the courts’ job is to resolve cases and controversies.  The last thing members of Congress should want is the courts doing our job.” 

The D.C. Circuit Court also has an impact not only throughout the United States, but also internationally since many of the cases relate to the balance of power in Washington and the review of the actions of federal agencies. Further four current Supreme Court Justices have served on the D.C. Circuit Court and it is known as a training ground for the highest court.