Fill other court vacancies first.

By Orrin Hatch

The Senate should not consider another nominee to the U.S. Court of Appeals for the D.C. Circuit until the need to fill this vacancy is clear and while more pressing vacancies on other courts have not been filled. So wrote Judiciary Committee Democrats in July 2006 when objecting to consideration of a D.C. Circuit nominee from President Bush. By their own standard, the Senate should not consider these new nominees to this court.

Using any relevant benchmark, and even with fewer active judges than in 2006, the D.C. Circuit has the lowest caseload in the country. Judges there handle 40% fewer cases than judges on the next busiest circuit. New cases have dropped by 13% since 2006. Judges who have taken “senior status” also handle cases, and the D.C. Circuit’s ratio of senior-to-active judges is nearly the highest of any circuit. The fact is the D. C. Circuit is no busier today than it was in 2006, when Democrats said that.

What has changed is the number of vacancies labeled “judicial emergencies” because of their age and caseload. Democrats in 2006 objected to another D.C. Circuit appointment even though President Bush had made nominations to 12 of 20 judicial emergencies. Democrats today demand three additional even though President Obama has made nominations to only eight of 33 judicial emergencies.

What explains this confirmation conversion? The president’s supporters think that filling these unnecessary D.C. Circuit seats will advance his political agenda. Doug Kendall, who heads the liberal Constitutional Accountability Center, wrote that “the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.”

Democrats also want to use a manufactured confirmation confrontation as an excuse to eliminate judicial filibusters. Never mind that Democrats blocked four times as many confirmation votes by filibusters under President Bush than have occurred under President Obama. Never mind that Senate Democratic leaders voted more than two dozen times for judicial filibusters, including against a D.C. Circuit nominee. Even then-Sen. Obama voted for several judicial filibusters, including a Supreme Court nominee.

There is no more need than in 2006 to fill these vacancies, and there is a greater need to fill certain vacancies on other courts. That would be a better course than a trumped up confrontation that will further politicize the confirmation process.

Sen. Orrin Hatch, R-Utah, is a member and former chairman of the Senate Judiciary Committee.

[CAC note: for a pre-buttal to this op-ed in USA Today by CAC President Doug Kendall from June 12, see ‘Duh, it is president’s job to nominate judges‘.]