The biggest piece of President Obama’s second-term agenda is his widely expected plan for the Environmental Protection Agency to issue new carbon regulations for power plants, a move that could bring the United States in line with the greenhouse-gas-reduction goals it agreed to in Copenhagen and open the way for an international treaty to control climate change. If the administration unveils such a plan, conservatives will undoubtedly challenge its legality. The legal challenge won’t take place for two years, but the two sides are preparing for war already. The field of battle will be the Federal Appeals Court in Washington, D.C.
The D.C. Circuit, as the appeals court covering legal issues arising within the nation’s capital, has assumed a large and growing influence in the ideological wars over the scope of government, and over the last decade its appointments have provoked bitter conflict. During George W. Bush’s second term, Democratic senators filibustered D.C. circuit nominees they considered extreme, causing Republicans to threaten to eliminate the filibuster for judges. Democrats called the threat the “nuclear option,” and the two sides negotiated a resolution when Democrats backed down and agreed not to filibuster judges except in extraordinary circumstances. Bush’s judges on the D.C. Circuit have inserted themselves even more heavily into the policy debate by striking down a slew of regulations in health care, pollution, labor, and other areas, turning the court into one of the right’s most potent weapons during the Obama era.
Since President Obama took office, four vacancies have opened on the D.C. Circuit Court, and Obama has not managed to seat a single justice to fill any of the slots. Republicans have displayed a willingness to filibuster even mainstream nominees, like Caitlin Halligan, who recently withdrew, while Obama expended little effort to resist.
The latter is rapidly changing. Obama has already nominated one judge for the Court — Sri Srinivasan, a lawyer so deeply respected by both sides he sailed through the Senate Judiciary Committee by an 18-0 vote, garnering fulsome praise from Republicans and appearing to be a fait accompli. Srinivasan, when seated, would give Democrats and Republicans four seats each. The remaining question is what will become of the remaining three vacancies, which, if filled, would give Obama a commanding majority.
Harry Reid is warning that, unless Republicans stop routinely filibustering Obama’s nominees for cabinet and judicial positions — that is, unless they adopt the high threshold that Senate Democrats accepted for blocking Bush’s nominees — he will change the Senate rules to ban such filibusters, just as Republicans had threatened under Bush. (Republicans are also holding up Obama’s picks to run the EPA, Consumer Financial Protection Agency, and Department of Labor.) Reid would only need 51 senators to execute this rule change, though enough Democrats have proven skittish about threatening the comity of the institution that his ability to muster the votes remains in doubt.
The Republican response is more audacious. They propose not merely to continue blocking Obama’s nominees but to simply eliminate all three vacancies on the D.C. Circuit, which will hear the inevitable legal challenge to power plant regulations.
The Republican line has been set out most enthusiastically by the comically mendacious Wall Street Journal editorial page, which has long recognized the primacy of the D.C. Circuit and fervently taken up whatever procedural stance is required to increase the Court’s Republican tilt. Under Bush, the Journal denounced Democratic judges on the D.C. Circuit for striking down laws that were met with the Journal’s approval. A 2005 editorial bitterly noted, “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.” Now that the other party holds the presidency, the Journal has come to see the court’s role in striking down laws passed by Democrats as an essential bulwark of freedom. The D.C. Circuit, the Journal argued last December, “provides the only check on the burgeoning regulatory state.” The legislators elected by the majority now turn out to be the whole problem. They pass sweeping regulations, “precisely to give regulators the discretion to impose far-reaching costs on the economy without the legislators having to take responsibility for the vote.” So unelected judges are now needed to give Republicans victories they can’t win in Congress.
The most recent Journal editorial is the most unbelievable of them all. Its primary contention is that the D.C. Circuit is filled with underworked slackers, thus rendering any additional nominees unnecessary. The Journal never mentioned this during the Bush years, when it was urgently demanding that Republican judges fill every last vacancy (“it's time for the remaining nominees to have the up-or-down floor votes they deserve”). But having suddenly discovered the plague of slothfulness on the D.C. Circuit, it has embraced the cause of shrinking the Court as a first-order principle.
In actual fact, the D.C. Circuit is actually so overloaded with cases — its heavy policy load makes its docket especially technically demanding — that it has leaned on a panel of retired judges to hear its overflow cases. The Journal amusingly presents this as a point against new judges: “The D.C. Circuit already has six judges on senior status who sit on cases,” the Journal tells us. “Senior judges hear cases in regular rotation like nonsenior judges, and some of them (such as Stephen Williams) carry near-regular caseloads.”
The retired judges hearing the cases all happen to be Republican, but this has nothing to do with the Journal’s preference for keeping them on the job rather than letting Obama fill the vacancies. The work keeps them young. Without it, they would sit at home and wait for the grandchildren to call. Doesn’t Obama recognize the medical dangers of loneliness?
The central contention of the Journal editorial is that, since the Court so obviously doesn’t need any new judges, Obama’s apparent intention to nominate new candidates to fill the vacancies is a plan to pack the court. “Packing the D.C. Circuit” is actually the headline on the Journal’s most recent editorial. The phrase “court-packing” originally applied to Franklin Roosevelt’s plan to add more seats to the Supreme Court, which he could fill with his own nominees. The Journal has decided to apply it to a plan to fill existing vacancies. You might think it applies more accurately to the Republican plan to eliminate three seats — after all, the essential thing about court-packing is changing the number of seats on a court to give your own side a partisan advantage. But no. The Journal thinks that move “makes sense.”
The Republicans don’t have the votes to actually pass their plan to eliminate all vacancies. Its function is to serve as justification for filibustering any nominees at all, however moderate or well qualified, for the remaining three vacancies. These are the battle lines forming for what appears to be a major partisan war this summer: Republicans insisting not only that they need not approve vacancies in the D.C. Circuit but that Obama’s attempt to fill them represents a kind of tyranny, and Democrats threatening to limit the filibuster as a routine weapon to obstruct appointments. Many things depend on the outcome of this fight, but the prospect for limiting climate change is surely the biggest.