The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.
Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.
There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.
People For the American Way Director of Communications Drew Courtney appeared on Disrupt with Karen Finney this weekend to discuss Senate Republicans’ reckless obstruction of President Obama’s nominees to the important Court of Appeals for the District of Columbia Circuit.
Unable to come up with any legitimate reason to filibuster President Obama’s three nominees to the Court of Appeals for the D.C. Circuit, Senate Republicans have landed on a not-so-convincing excuse: They claim that the court has too many judges as it is and that it would be wasteful to fill its remaining vacancies.
Sen. Charles Grassley of Iowa has even gone so far as to introduce a bill that would permanently reduce the number of seats on the influential court from eleven to eight (the number of active judges currently sitting on the court), thereby preventing President Obama from placing any more nominees on the court. (The president has had one nominee confirmed to the DC Circuit, compared to four nominees under President Bush and eight under President Reagan).
Grassley’s bill would reduce the number of slots on the DC Circuit by three and “reallocate” two of those seats to circuits that he contends need the judges more.
There are a number of gaping flaws in Grassley’s logic, the first of which is that he and his fellow Republicans were eager to fill the very same DC Circuit seats that they are now trying to eliminate back when President Bush was the one making nominations.
Then, there’s the fact that there seems to be absolutely no basis for reallocating the two D.C. Circuit seats to the Eleventh and Second circuits. The official office that evaluates the needs of federal courts and makes recommendations for adding and removing seats doesn’t include the D.C. Circuit in its recommendations because the court’s caseload is uniquely complex and difficult to compare to that of other courts…and it also hasn’t recommended that the Eleventh or Second circuits get new judges.
This was confirmed by a former Chief Judge of the Eleventh Circuit whose statement [see p. 34 of this pdf] was submitted into the Senate record last month confirming that his former court indeed does not need new judges:
Since my appointment to the Eleventh Circuit on October 1, 1990, the judges of our court annually have voted whether or not we should ask Congress to authorize more federal judges. Each time our court considers the topic, an overwhelming majority of our members have voted “no!”
Even one of the co-sponsors of the court-rigging bill – Sen. Jeff Sessions – has gone on record saying that the Eleventh and Second Circuits actually don’t need new judgeships.
All of which makes one suspect that of all the goals that Sen. Grassley might have in mind with the Court Efficiency Act, the efficiency of the courts is probably not one of them.