The New GOP Plan to Block Obama’s Judicial Nominees
Authorized for 11 judgeships, the court presently has only eight judges. Republicans claim that the court is “evenly divided” among judges appointed by Republicans and Democrats. But the court also has six semi-retired senior judges who still hear cases. When they’re included, Republicans have a 9-5 majority. Many of those GOP nominees are also hardcore conservative ideologues. Among them: Janice Rogers Brown, who almost didn’t get confirmed during the George W. Bush administration because of her extreme libertarian views. An Ayn Rand fan, Brown considered Supreme Court decisions upholding minimum-wage laws “the triumph of our socialist revolution.”
The Republican majority on this court has been able to advance aspects of the GOP’s anti-regulatory agenda that the party has failed to accomplish legislatively. Last year, for instance, the DC Circuit struck down a set of environmental rules 20 years in the making that would have held states responsible for pollution that leaked across their borders. The DC Circuit’s conservative majority would shrink considerably should Obama succeed in getting all of his nominees confirmed. That’s why Republicans have been blocking Obama from filling those three slots. (Overall, Obama’s judicial nominees have waited an average of 277 days before getting a confirmation vote, compared with 175 during the George W. Bush administration.)
Along with trying to filibuster Obama’s nominees, the GOP has come up with a clever scheme to shrink the number of judges on the appeals court to deny Obama vacancies to fill. Congressional Republicans have claimed that the DC appeals court is under-worked and thus the shrinkage is justified. And they have repeatedly accused Obama of “court packing” simply for trying to fill the existing vacancies on the DC Circuit, comparing the president unfavorably to F.D.R., who attempted to expand the number of Supreme Court seats to shift the balance of power. The talking point is a nifty dodge for Republicans who can’t really come up with a good reason why they won’t confirm Obama’s otherwise uncontroversial and qualified nominees. It allows them to say to the nominees whose judgeships they’re holding up, “Hey, we really think you’re great. The court just doesn’t need any more judges.”