Federal Courts and Nominations

Obama seeks to shift conservative tilt of key court

By Juliet Eilperin, page A1


President Obama has pressed senators from both parties in recent weeks to confirm a new federal judge for one of the country’s most powerful courts, using an aggressive strategy to campaign for a judicial nominee whom White House officials consider a potentially crucial figure in boosting the president’s second-term agenda.


The effort reflects a new White House effort to tilt in its favor the conservative-dominated U.S. Court of Appeals for the District of Columbia Circuit, which is one notch below the Supreme Court and considers many challenges to executive actions.


The push to win approval for Sri Srinivasan, the principal deputy solicitor general, has taken on greater urgency because Obama was forced late last month to withdraw his initial nominee to fill one of the court’s vacancies, New York City prosecutor Caitlin Halligan, in the face of a Republican filibuster.


Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.


The D.C. Circuit, with four Republican and three Democratic appointees, has four vacancies. It proved an obstacle for Obama during his first term — blocking proposed rules, for instance, to curb interstate air pollution and enhance cigarette labeling. The court also has put on hold dozens of cases relating to rules on workers’ rights, and it has challenged the president’s authority to name recess appointees.


In recent days, Obama has intervened in the push for Srinivasan, said a White House official who spoke on the condition of anonymity because the confirmation process is not complete. The president has used meetings with Republican and Democratic senators to make a case for swift confirmation, the official said.


The president mentioned the issue of judicial nominations during a recent Google Plus video chat, and the White House has spread the message online about the D.C. Circuit’s vacancies.


One case the White House is making privately is that Srinivasan, who worked in President George W. Bush’s solicitor general’s office for five years before returning there under Obama in 2011, holds bipartisan appeal. Underscoring that point, 12 former solicitors general and principal deputy solicitors general — six Democrats and six Republicans — issued a letter Monday urging the nominee’s confirmation.


“There are few things more vital on the president’s second-term agenda,” said Constitutional Accountability Center President Doug Kendall, who co-wrote an upcoming Environmental Law Forum article on the subject with his group’s senior counsel, Simon Lazarus. “With legislative priorities gridlocked in Congress, the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.”


Born in India and raised in Lawrence, Kan., Srinivasan, 46, has the backing of the country’s South Asian community, which voted overwhelmingly for Obama but has been an increasingly important donor base for both parties. Activist groups have mobilized to boost the White House campaign, with one organization, the Indian American Leadership Initiative, reaching out to Indian Americans in key states whose senators sit on the Judiciary Committee and lining up help from GOP donors.


“This, for us, is a real groundbreaking nomination,” said Anurag Varma, vice president of the group. “It’s great to see Indian Americans who vote Republican also see Sri as a great candidate.”


White House press secretary Jay Carney made a point during his news briefing Monday of extolling the credentials of Srinivasan, whose nomination will come before the Senate Judiciary Committee on April 11. Carney noted that Srinivasan has argued two dozen cases before the Supreme Court and has served “on behalf of the United States for both Democratic and Republican administrations.


“Sri’s confirmation will be an important first step to filling this court’s four vacancies, and he will be, when confirmed, the first South Asian circuit court judge in history,” Carney said, adding that the D.C. Circuit “is often considered the nation’s second-highest court, but it has twice as many vacancies as any other court of appeals.”


Although a number of Obama’s judicial nominees are awaiting confirmation — 15 are awaiting Senate floor votes, including 13 who won unanimous approval from the judiciary panel — the D.C. Circuit has taken on outsize importance because of its conservative tilt and its role overseeing Obama’s executive authority.


In January, the court threw out a decision by the National Labor Relations Board on grounds that the recess appointments Obama made to the board were invalid. Since then, the court has put dozens of NLRB cases on hold, prompting concern in organized labor, a key Obama base.


“It’s no exaggeration to say the workers’ rights agenda is either on hold or blowing up at the D.C. Circuit, in the hands of a few conservative judges,” said Lynn Rhinehart, general counsel for the AFL-CIO.


The court is just as influential when it comes to environmental cases. It has exclusive jurisdiction over national rules issued under the Clean Air Act and the Safe Drinking Water Act, among other laws. It will have the power to block Obama’s efforts to regulate greenhouse gas emissions.


“D.C. Circuit litigation will ensure these programs pass legal muster,” said Joseph Stanko, who heads government relations at the law firm Hunton & Williams and represents several coal-fired utilities that oppose rules governing greenhouse gas emissions.


The White House effort, which includes pinning the blame on Republican senators for rampant federal court vacancies, has led to some additional bickering over who is at fault.


Vacancies have grown under Obama, and the president has nominated replacements at a slower rate than those of his immediate predecessors, according to a report the Brookings Institution issued in December.


When Obama made a pitch for his judicial nominees in a closed-door lunch with Senate Republicans a few weeks ago, Sen. Charles E. Grassley (Iowa) questioned how the president could complain when he had not offered judicial nominees for several vacancies.


“Despite the rhetoric coming out of the White House, the numbers just don’t stand up,” Grassley, the ranking Republican on the Senate Judiciary Committee, said in a statement. “Out of the 87 judicial vacancies in the federal courts, 62 of them don’t have nominees, and the only nominee for the D.C. Circuit has a hearing next week.”

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