The New GOP Plan to Block Obama’s Judicial Nominees

The US Court of Appeals for the DC Circuit

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Second only to the Supreme Court, the DC Circuit Court of Appeals is considered the most important federal court. It’s the body that hears the challenges to every unpopular regulation proposed by a federal agency. For instance, the court of appeals is currently hearing a spate of lawsuits from private companies arguing that they should be exempt from providing contraception coverage to workers because of their religious views. Right now, this key appellate court has more vacancies than it’s had in a decade—and congressional Republicans are hoping to keep it that way. 

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.” 

With Sen. Charles Grassley (R-Iowa) leading the charge, the Senate took up a bill, the Court Efficiency Act, to downsize the DC Circuit earlier this year. (Kevin Drum has covered this extensively here.) That legislation has been co-sponsored by the party’s newest stars, Ted Cruz (R-Texas) and Marco Rubio (R-Fla.), along with other tea party Republicans including Utah’s Mike Lee. The House held a hearing on Tuesday to consider its version of this bill, introduced by Rep. Tom Cotton (R-Ark.), which is called the Stop Court-Packing Act. The idea that nominating judges for ordinary federal vacancies is a form of court-packing is a disingenuous claim that has been dismissed even by conservatives. Fox News contributor Byron York, author of The Vast Left Wing Conspiracy, tweeted in May, “It doesn’t strike me as ‘packing’ to nominate candidates for available seats.”

One of the co-sponsors of Grassley’s bill is Sen. Orrin Hatch (R-Utah). While Hatch and his fellow Republicans are now trying to shrink the appeals court, in 2003 he gave a speech decrying the number of DC Circuit vacancies. Hatch noted then that the court was down to only eight judges (which at that time hadn’t happened since 1980), and he called the judicial vacancies “a crisis situation” because of the court’s workload. 

As the House and Senate versions of the appeals-court-shrinking legislation wind their way to a vote, Senate Republicans are resorting to more tried and true methods for obstructing the president’s nominees. On Monday night, Senate Majority Leader Harry Reid (D-Nev.) moved to bring the nomination of Patricia Millet to the DC Circuit to the floor for a vote, a move Senate Republicans are vowing to filibuster. (South Carolina’s Sen. Lindsey Graham even promised to hold up every judicial nomination until Democrats present Benghazi survivors for congressional questioning.) Millet’s prospects don’t look particularly good, though even Ted Cruz has acknowledged her “fine professional qualifications.” The last woman Obama nominated to the DC Circuit, Caitlin Halligan, finally withdrew her name in March after waiting almost two and a half years for the Senate to confirm her. 

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate