Court Packing by Another Name

[cwo_ghwebb]

Next to the initial response to Benghazi, the DOJ’s journalist eavesdropping, and conservative targeting at the IRS, add the existence of the Circuit Court of Appeals for the District of Columbia to the list of things about the federal government of which President Obama has, apparently, only recently been made aware.

After years of treating the court (usually considered the second-most-important judicial body in the republic) with a casual indifference, the administration suddenly announced three nominees to it on Monday — and is using the bully pulpit to up pressure on the Senate to approve them quickly. In aid of that effort, Majority Leader Harry Reid has renewed his threats to change that body’s longstanding rules.

The president’s newfound interest in the D.C. circuit is puzzling, considering he waited nearly two years after taking office to make any nomination to the court whatever. Or that he delayed the nomination of federal solicitor Sri Srinivasan, who recently skated through the confirmation process, by three years over grumbles from his liberal base. Or that another nominee, NAACP counsel Debo P. Adegbile, failed even to make it past an initial screening by the American Bar Association. Or that he let months pass before acting after one of the few picks that did get to the Senate, Caitlin Halligan, failed to win confirmation. And the urgency Mr. Obama now says is required to fill these vacancies is belied at turns by the facts (the most recent vacancy is barely three months old) and his own past behavior (the oldest vacancy is so old that Senator Obama availed himself of the opportunity to block President Bush’s nominee to fill it). The administrators of the federal courts, headed by custom and law by Chief Justice Roberts, identify 33 outstanding judicial “emergencies” — defined as longstanding vacancies in district or circuit courts with large volumes of filings. The Obama administration has made nominations in just eight of these cases. The D.C. circuit does not appear on the list.

Court Packing by Another Name | National Review Online

If the editorial is factual (not sure as I don't follow this issue closely) it would appear the argument of making the court 'balanced' is facetious. It is the President's perogative to make nominations. It's also the Senate's responsibility to properly vet a nomination in their advise and consent role.

 

[Tilted]

Critics should stop using the term 'court packing', it corrodes their credibility on an issue regarding which it would be nice to have credible criticism heard. That term is associated with what President F.D. Roosevelt threatened to do with the Supreme Court - something that is on a different level of inappropriateness than what President Obama is currently doing by nominating people, even if they are ideologically undesirable to conservatives, to fill vacant positions on circuit courts. As far as I can tell, President Obama is not threatening to push through legislation to expand the number of seats on those courts so that he can pack them with rubber-stamping ideological drones.

Us critics of President Obama's nominations need to find another term, one that doesn't already have a clear (and misleading as used in this situation) implication, or we can just accurately describe what he's doing without using a talking-point term. We need to criticize what he does, not intentionally confound what he does with more odious actions in hopes of shortcutting any need to support our criticisms with substance.

 

[cwo_ghwebb]

Critics should stop using the term 'court packing', it corrodes their credibility on an issue regarding which it would be nice to have credible criticism heard. That term is associated with what President F.D. Roosevelt threatened to do with the Supreme Court - something that is on a different level of inappropriateness than what President Obama is currently doing by nominating people, even if they are ideologically undesirable to conservatives, to fill vacant positions on circuit courts. As far as I can tell, President Obama is not threatening to push through legislation to expand the number of seats on those courts so that he can pack them with rubber-stamping ideological drones.

Us critics of President Obama's nominations need to find another term, one that doesn't already have a clear (and misleading as used in this situation) implication, or we can just accurately describe what he's doing without using a talking-point term. We need to criticize what he does, not intentionally confound what he does with more odious actions in hopes of shortcutting any need to support our criticisms with substance.

What would be a good term to use?

Is the editorial technically correct (4/4 judges for example)?

 

[Tilted]

What would be a good term to use?

Nominating unqualified judges? Or nominating ideologues? Trying to fill the court with liberals?

I don't know, critics should describe what he's doing that they think is wrong. But 'court packing' strongly implies something other than what President Obama is doing. He's trying to fill vacancies, not threatening to expand the number of seats on the court so that he can artificially manufacturer an ideological majority.

Is the editorial technically correct (4/4 judges for example)?

I don't know if it's all correct, but that ratio for active judges appears to be. But he senior judges appear to be 5-1 appointed by Republican presidents, so if we're considering whether the court is 'balanced' based on that measure, then in effect it isn't. That doesn't really matter when it comes to the propriety of President Obama nominating people to fill the vacancies though. Whatever the current ratio is, that's what it is; and whoever the President nominates will have been nominated by a Democratic president.

Whether or not the factual assertions the piece makes are accurate or not, I don't think the big picture point that it's trying to make (to the extent I understand it) is valid. The President is nominating people to fill vacancies. That's what he's supposed to do. Perhaps we can criticize who he nominates, but we've little legitimate basis on which to criticize him for making nominations.

Our federal courts have a lot of vacancies, and that creates problems. It's part of the reason cases and issues take so long to be resolved. Members of both parties are to blame. Presidents have had a hard time getting their nominations confirmed for a while. President Bush had trouble and now President Obama is having trouble. Is it because they've been nominating unqualified people? Ideological extremists? Or is it because the opposition party has been unreasonable in holding up or not confirming nominations? It's probably been some of each. But it has left us with a lot of vacancies on district and circuit courts.

That's true of the D.C. Circuit, which is a rather important circuit because it handles some kinds of cases exclusively (i.e. without regard to what geographic region the cases arises from). It's not like the President has just left vacancies on that court since he's been in office, and now all of a sudden he's decided to make nominations. He's made nominations to that court as well as others, and often those nominations just get stuck in a holding pattern. He finally got a nomination for the D.C. Circuit confirmed a couple of weeks ago. Now he's making more nominations, one of which is for a vacancy that just occurred in February, another of which is for a vacancy that is many years old. Other circuits have similar situations - a number of vacancies, some of which have needed filling for years.

Again, we can say - nominate judges more to our liking, or nominate judges that are more qualified, and we'll be able to get these vacancies filled. But we can't really complain about him making nominations to begin with. And it rings kind of hollow to criticize him for not having active nominations for every single open seat at any given time. He's been trying to fill seats, he's just had a difficult time getting many approved (as did President Bush II). At any given time there are nominations waiting for the Senate to move forward with. The hold up isn't the President not providing nominations, it's the President not providing nominations that the Senate (honoring cloture rules) will timely act on or approve.

I want to respond to one last notion advanced in that piece - that, because there are senior judges sitting on the D.C. Circuit, that means it is operating at or above capacity even though there are a number of vacancies for active judges. That's not a valid assertion. The idea is to have a full roster of active judges and then have some senior judges to help with the workload when needed. The point isn't to have the 11 active judges and no senior judges, it's to have the 11 active judges and some senior judges. Even still it would take longer than it should to resolve cases. Having vacancies makes the situation worse.

 

[Lurk]

Elections have consequences. In this case, the re-election of Harry Reid and his Senate cronies will have long-lasting consequences.

 

[cwo_ghwebb]

It appears to me that Obama isn't nominating judges according to need.

If a certain court has had a need for judges for a long time, take care of them first.

Kinda like my bills, I pay the ones due now, not the ones due in two weeks.