Packing the DC Circuit with DC lawyers

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Last month, Senator Chuck Grassley (R-IA) accused President Obama of attempting to “pack” the D.C. Circuit Court of Appeals by nominating individuals to fill three vacancies on the court. Nonsense, said the Washington Post’s Dylan Matthews, who labeled Grassley’s claim “one of the more amusing moments on C-SPAN in recent memory.” For his part, President Obama said he has a constitutional responsibility to fill the vacancies, though he failed to explain why he had not performed this responsibility with respect to the dozens of judicial vacancies that lingered through his entire first term.

Of course, the president is right about this. Nominating people to fill existing vacancies can hardly be called “court packing.” Grassley was made to look silly, but he did have a point, however poorly stated.

Since 2000, the D.C. Circuit has had three or more vacancies. In 2007, Congress reduced the size of the court from 12 to 11 judges (excluding senior judges), presumably because the persistent vacancies were taken to indicate the court had more positions than it needed. Perhaps Senator Grassley thought there was an understanding in the Senate that neither party would press its political advantage so long as the remaining vacancies didn’t really need filling. The vacancies did, after all, persist through Democratic and Republican administrations and through Democratic and Republican Senate majorities.

But whatever understanding may have existed, it did not include easy confirmation for nominations to the D.C. Circuit. As the president reminded us when introducing his three latest nominees in a Rose Garden ceremony this week, his nominee Caitlin Halligan’s nomination was stalled by Republicans for two and a half years before being withdrawn. Somehow the president failed to mention that President George W. Bush’s nomination of Miguel Estrada was stalled by Democrats for two years before being withdrawn. Nor did the president mention that John Roberts was confirmed only after Republicans gained control of the Senate, or that three other Bush nominees (Thomas Griffith, Janice Rogers Brown and Brett Kavanaugh) were stalled by Democrats until Bush agreed to the so-called Gang of 14 deal, or that Democrats failed to act on the nomination of Peter Keisler through two sessions of Congress.

Obama’s three recent nominees to the D.C. Circuit are certain to experience similar resistance. Washington insiders and court watchers are predicting that the president will be lucky to get any of the three confirmed.

Most knowledgeable people seem to agree that the nominees — Patricia Millett, Cornelia Pillard and federal district judge Robert Wilkins — are well qualified. But if the Senate ever gets around to considering them on their merits, its members should note that, like the just-confirmed Judge Sri Srinivasan, all three are Washington, D.C., lawyers.

We’re constantly reminded that the D.C. Circuit is really a national court, second only to the Supreme Court in importance. Yet all three of Obama’s nominees are from the District of Columbia. Six of the eight sitting members of the court are from the District of Columbia, too, as are three of the six senior judges. That means they’ve probably been government lawyers at one time or another. That the D.C. Circuit is largely comprised of government lawyers from D.C. might make folks in the hinterlands nervous.

Senators are supposed to represent their states. If the D.C. Circuit is really a national court — and judging by the impact of its decisions in every corner of the country, it is — even the Democrats in the Senate ought to insist the president look beyond the Beltway for qualified candidates. Maybe Senator Grassley meant to object that the president is packing the D.C. Circuit with Washington lawyers. I wonder if Washington Post bloggers would find that amusing.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.