TOPICS > Politics

Obama Moves to Fill U.S. Court of Appeals Seats, Setting Stage for Confrontation

June 4, 2013 at 12:00 AM EST
President Barack Obama made three nominations to the influential U.S. Court of Appeals. Jeffrey Brown gets debate from Caroline Fredrickson of the American Constitution Society for Law and Policy and Carrie Severino of the Judicial Crisis Network on judicial vacancies and the fight over the president's candidates for the court.
LISTEN SEE PODCASTS

TRANSCRIPT

JEFFREY BROWN: A summer showdown now looms in Washington over filling key federal judgeships. The president set things in motion today with his nominees to take seats on one key appeals court.

PRESIDENT BARACK OBAMA: What I am doing today my job. I need the Senate to do its job.

JEFFREY BROWN: President Obama lashed out at Senate Republicans today for playing politics in delaying votes on past judicial nominations. He did so at a White House Rose Garden event, announcing three nominees to fill vacancies on the 11-member U.S. Court of Appeals for the District of Columbia Circuit. It’s often referred to as the nation’s second highest court, ruling on high-profile cases of national significance.

PRESIDENT OBAMA: Time and again, congressional Republicans cynically used Senate rules and procedures to delay and even block qualified nominees from coming to a full vote. As a result, my judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor. So, this is not about principled opposition. This is about political obstruction.

JEFFREY BROWN: Today marked the first time the president has held an event to announce nominees to any bench other than the Supreme Court.

His choices include Patricia Ann Millett, a D.C. appellate lawyer, Georgetown University law professor Cornelia Pillard, and U.S. District Court Judge Robert Leon Wilkins.

The nominations come as Senate Majority Leader Harry Reid was threatening to change Senate procedure to eliminate judicial filibusters. Today, though, Minority Leader Mitch McConnell warned Republicans won’t go down without a fight.

SEN. MITCH MCCONNELL, R-Ky.: We don’t intend to be intimidated by him with a constant threat to break the rules in order to change the rules. If that’s what’s going to happen, we want to know it now, not some other time. Now.

JEFFREY BROWN: WNYC reporter Todd Zwillich:

TODD ZWILLICH, WNYC Radio: Well, by making all three nominations now, President Obama is actually, in a way, teaming up with Majority Leader Harry Reid. He’s saying, here are my three judges, and increasing the pressure on Mitch McConnell and Senate Republicans to either give these nominees and some executive branch nominees up-or-down votes or explain why they won’t.

JEFFREY BROWN: Last month, the Senate unanimously approved one of the president’s nominees to the D.C. Circuit, Sri Srinivasan. It was the first confirmation to that court in seven years.

The heated debate goes beyond the Capitol to groups who closely follow courts and the judicial process.

We’re joined now by Caroline Fredrickson, president of the American Constitution Society for Law and Policy. She was at the White House today. And Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which is critical of the president’s actions.

And welcome to both of you.

CARRIE SEVERINO, Judicial Crisis Network: Thank you so much.

JEFFREY BROWN: Caroline Fredrickson, let me start with you.

Your group pushed the White House to make these nomination, right, all three at one time?

CAROLINE FREDRICKSON, American Constitution Society for Law and Policy: That’s right, all three at …

JEFFREY BROWN: Why was it so important?

CAROLINE FREDRICKSON: Well, this is a really important court.

This is one of the courts that I think people say very frequently is second only to the Supreme Court. And in some ways, it’s actually as important or more so, because it decides so many more cases.

And the kind of cases that go to the D.C. Circuit are some of the most significant in our country, including — including major agency appeals, some of the most important environmental regulations, health care, financial regulations, workers’ rights, voting, national security, you name it. The most important cases go to the D.C. Circuit.

And it’s critical that it can operate at full capacity so that our nation’s justice can be done.

JEFFREY BROWN: Now, Carrie Severino, one prominent Republican senator, Charles Grassley, has already criticized the president for what he termed packing the court. Explain why filling the vacancies is packing the court.

CARRIE SEVERINO: Well, exactly.

As Caroline said — I agree — it’s an incredibly important court, but the president is in a situation where there are numerous federal emergencies on the bench. There’s a lot of vacancies that aren’t done. And instead of filling those vacancies — he has got 70 percent of the vacancies empty right now — he’s chosen to focus on the D.C. Circuit in what is really a blatant political move.

He wants to fill up that court because his administrative agenda is going to be coming through that court. Right now, the court is perfectly balanced at four Republican and four Democratic nominees, and has one of the lowest caseloads in the country. I clerked in the D.C. Circuit. I can definitely say from experience it’s a very low caseload. They end up canceling a lot of hearings because they don’t — or sittings because they don’t actually have cases to fill them.

So focus on the places where there are judicial emergencies, not trying to just fill up the D.C. Circuit so it will rubber-stamp his agenda.

JEFFREY BROWN: OK, several things in that. Respond. Go ahead.

CAROLINE FREDRICKSON: Well, I have heard this argument many times.

It’s sort of Orwellian in many ways, because the reason why the vacancies exist in the other courts is because the Republicans in the Senate have been delaying for so long. And they delay on the front end. They don’t send district court nominees to the White House. They delay when they don’t send their blue slips — technical term about the Senate Judiciary and how it processes. But, basically, it’s like a permission slip for the Senate Judiciary Committee to actually process district court nominations and circuit court nominations.

And then they delay before they have a vote before the full Senate. And this is a president who’s faced the longest delays from Senate Judiciary hearing to the floor vote of any president in history. So I think, yes, of course, there are vacancies.

And I would say the other point is that it was — certainly, there was a strong push by the Republicans, including Sen. Grassley and the other current members of the Senate Judiciary Committee and the leadership, to fill all 11 seats on the D.C. Circuit when President Bush was president, and they succeeded in doing so.

The only change now that we have President Obama and not President Bush.

JEFFREY BROWN: Well, let me ask you about this, because when you said in your first answer that this is a blatant political move, you called it, isn’t in a sense that the way the system works? The president gets to put out his nominees, and one would expect that they might, I don’t know, have — be in alignment with what he thinks?

CARRIE SEVERINO: Absolutely.

A president can nominate the people he expects to line up with his ideology. But these are the same Judiciary Committee members who were saying at the time of Peter Keisler’s nomination, for example — it’s amusing the president was saying today one of these nominations has been there ever since it was vacated by Chief Justice John Roberts.

Well, here was there in the Senate while that — that nominee was sitting there 900 days, didn’t even get a hearing. When we talk about judicial nominees having a long period from hearing to confirmation, that’s really just cherry-picking one step in what you have accurately characterized as a very complicated process.

Data from the Brookings Institution clarifies that the Obama nominees on average from nomination to confirmation have 283 — or 240 days. Bush’s nominees were 283. So, actually, it’s faster if you look at the whole process.

JEFFREY BROWN: But I’m asking you about the principle of it. You have been a clerk yourself in both the court and the Supreme Court. So the principle of appointing — whether it’s a Democrat or Republican, what is wrong — why is that packing the court?

CARRIE SEVERINO: Well, the D.C. Circuit, actually, those spaces are not really — at a time we have got a budget crunch, there’s actually been a move some of those seats to other courts. It’s been done before.

And in terms of the resources spent looking at those nominations, that should be spent on places where there are serious judicial emergencies, not at the D.C. Circuit. This is not a place — this is somewhere where actually there’s more seats than are necessary. Why are we spending our resources there, rather than the courts where you frequently have district judges that have to sit in because there aren’t enough circuit judges to hear the case?

JEFFREY BROWN: What about, to your side, that — the argument that the Democrats often did the same to Republicans?

CAROLINE FREDRICKSON: Well, so, but …

JEFFREY BROWN: And we just had Sri Srinivasan. He did get through without — unanimously.

CAROLINE FREDRICKSON: Right, to the eighth seat of the 11-seat D.C. Circuit.

And it’s clear there’s politics in this. It’s a political process. But we do have a president who got elected. So, I would remind us again that Thomas Griffith was confirmed to the D.C. Circuit, to the 11th seat under George Bush when the case load was actually lower than it is now. And we certainly had economic problems at the time.

I think the only real significant change here is who’s the president. And I — it’s hard for me to understand how court-packing now is filling the existing vacancies, when President Bush was capable of doing that. And I would say the Federal Judiciary Conference, chaired by Chief Justice Roberts, just two months ago recommended that all 11 seats of the D.C. Circuit be filled.

JEFFREY BROWN: Just thinking about Sri Srinivasan going through recently, would any of these current — three new nominees generate opposition or controversy if they were put forward individually, rather than all together?

CARRIE SEVERINO: Well, I think putting them through all together is clearly a publicity stunt on the part of the president and has been …

JEFFREY BROWN: You think he’s throwing it at the Republicans?

CARRIE SEVERINO: I think it was Senator Schumer who said, look, you — holding up nominations one at a time would be one thing, but this will force them to lay down and decide what they’re going to do all at once.

And so it’s clearly a strategic move. I think what makes it like court-packing — we’re referencing of course President Roosevelt’s attempt to pack the Supreme Court to get his agenda through — is the fact that even the president’s allies have said the reason we need these people on the D.C. Circuit is not because of workload, but because — they didn’t say not because of workload. They said because we need to have someone who is going to be approving the president’s agenda.

And his agenda is moving straight through the regulatory system and going to be going through that administrative process. So that’s exactly same thing that President Roosevelt was trying to do when he was packing the court. It’s a very similar parallel.

JEFFREY BROWN: Just very briefly, do you expect that this will end in a clash in the Senate over the procedure and the rules?

CAROLINE FREDRICKSON: Well, no doubt.

But I do have to respond to how court-packing can be filling existing vacancies. That is just so Orwellian, I just — it can’t even …

CARRIE SEVERINO: Chuck Schumer has used that exact term. Pat Leahy has used that term, so these are — that term has been used by both sides. That doesn’t mean …

CAROLINE FREDRICKSON: Not to fill existing vacancies.

But I do think there will be a clash. There’s definitely — Mitch McConnell made it clear today that he is going to fight. And I hope that Leader Reid does the same.

JEFFREY BROWN: All right, Caroline Fredrickson, Carrie Severino, thank you both very much.

CARRIE SEVERINO: Thanks.

CAROLINE FREDRICKSON: Thank you.