Federal Courts and Nominations

A “Pack” of Nonsense

On a picture perfect day earlier this week, President Obama nominated Patricia Millett, Nina Pillard, and Judge Robert Wilkins to fill the three vacancies on the D.C. Circuit Court of Appeals during a ceremony in the White House Rose Garden. This was an important moment for the Obama presidency when it comes to judges—the president delivered a powerful speech about the unprecedented obstruction that has stalled or outright blocked his nominees. After bending over backwards during his first term to appease Senate Republicans to get a modicum of cooperation that never materialized, President Obama made it clear he is fed up and ready to fight for his nominees.

Of course, the President isn’t the only one ready to fight. Conservative activists have been fighting tooth and nail over the future of the federal judiciary for decades. Their hilarious first response to President Obama’s nominations has been to claim that, by complying with his constitutional mandate to nominate people to fill authorized seats on the federal bench, the President is engaging in “court packing.” Even some conservatives have had a hard time understanding this assertion. As Byron York, a Fox News contributor and author of The Vast Left Wing Conspiracy dryly noted, “it doesn’t strike me as ‘packing’ to nominate candidates for available seats.” American Enterprise Institute scholar Norm Ornstein more colorfully said that the claim made him “laugh out loud.” Ornstein continued with “How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?” Good question.

The more serious claim from the right is that President Obama is attempting to use these appointments to advance his policy agenda. This gets it exactly backwards. It is conservatives who have, successfully, used appointments to the D.C. Circuit to advance their policy agenda in recent years. By putting judges from the tea party fringe, such as Janice Rogers Brown, and conservative political operatives, such as Brett Kavanaugh, on this critical court, President George W. Bush helped produce a court that is, in the words of Pulitzer Prize winning columnist and George Mason Professor Steven Pearlstein, waging “judicial jihad against the regulatory state.” As Perlstein observed, “dysfunctional government has become the strategic goal of the radical fringe [on the political right]. … Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.”

In this context, President Obama does not need judges who will advance a progressive agenda. He simply needs judges who will uphold validly enacted laws and reasonable regulations. This is reflected in his nominees. If President Obama were seeking ideological warriors for the D.C. Circuit, it is unlikely that he would have nominated two people who served long stints in the Office of the Solicitor General under George W. Bush, as is the case of his one confirmed nominee to the court, Sri Srinivasan, and one of his new nominees, Patricia Millett. All four of his nominees have been given the American Bar Association’s highest possible rating.

President Obama can nominate individuals based on qualifications rather than ideological fervor for a simple reason: the success of his agenda doesn’t require judges who will bend the law, it just needs judges who will follow it. 

This piece is cross-posted on Huffington Post.

This article has been reprinted in the following publications

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