IE 11 is not supported. For an optimal experience visit our site on another browser.

Obama to set stage for judicial showdown

The D.C. Circuit Court of Appeals
The D.C. Circuit Court of AppealsAssociated Press

Nearly two months ago, Senate Democrats said President Obama, any day now, would nominate several would-be judges to fill the vacancies on the D.C. Circuit bench. But after weeks went by with no news, it was hard not to wonder if we'd ever see these alleged nominees.

Wonder no more.

President Obama will nominate a slate of three candidates on Tuesday to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit, a White House official said Monday.

The president will name Cornelia T. L. Pillard, a law professor; Patricia Ann Millett, an appellate lawyer; and Robert L. Wilkins, a federal district judge, to fill out the appeals court, which is often described as the second most powerful court in the country because it decides major cases and often serves as a launching pad for future Supreme Court justices.

At the outset, let's emphasize how uncontroversial this is -- there are vacancies on an important federal bench, so the president is sending qualified nominees to the Senate for consideration. Republicans are characterizing this as a scandalous power-grab, while many political reporters are describing this as Obama thumbing his nose at his political rivals. In reality, it's neither -- presidents filling judicial vacancies is basic American governance. It's Civics 101. That today's announcement is seen as somehow remarkable is evidence of just how broken the process has become.

There is, however, a political context to the underlying fight. Senate Republicans have not only been eager to block Obama's judicial nominees in general, but they've been terrified by the prospect of a D.C. Circuit with a center-left majority. With this in mind, GOP senators are very likely to block the three nominees the president will introduce from the Rose Garden today.

And this in turn will create a contentious political dynamic. Indeed, for the White House and its allies, it's already been gamed out -- if the Senate minority blocks three moderate/mainstream judicial nominees, effectively because Republicans are annoyed that they lost the 2012 election, then the Senate Democratic majority will likely feel as if they have no choice but to execute the "nuclear option" and end filibusters on judicial nominees altogether.

What's more, let's not overlook the importance of the D.C. Circuit in particular.

While on paper all of the federal appeals court benches are on equal footing in terms of importance, the D.C. Circuit is clearly first among equals -- it's not only served as a launching pad for jurists who end up on the U.S. Supreme Court, but it's also the bench that routinely hears regulatory challenges. As the New York Times recently explained, this bench "has overturned major parts of the president's agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers' rights."

If you take those issues seriously, then you need to take this court seriously.

The D.C. Circuit has 11 seats, but for all of Obama's first term, conservative judges outnumbered center-left jurists, four to three. As of last month, there's a four-to-four split. If the president's new slate of nominees is approved, there will be no vacancies, and judges named by Democratic presidents will enjoy a seven-to-four advantage.

This is far more consequential than much of the public realizes. As Emily Bazelon explained last week, the D.C. Circuit is likely to have considerable influence over the future of the Affordable Care Act, Wall Street reform, immigration reform, and perhaps most importantly, efforts to combat the climate crisis.

This is, in other words, a fight worth having, and the outcome will have a lasting impact for many years to come.