Confirmed by the Senate only last week, Sri Srinivasan, President Barack Obama’s first, and so far only, appointee to the powerful appeals court in Washington hasn’t yet fully joined the work of that court, but already speculation is simmering about whether he’ll be Obama’s choice to fill the next vacancy on the U.S. Supreme Court.
Last week, on the day the Senate voted unanimously to approve Srinivasan, Sen. Charles Schumer, D-N.Y., smiled wryly and joked to reporters, “We may be seeing him come before the Senate again soon.”
The United States Court of Appeals for the District of Columbia Circuit has often been the last stop for a top-flight lawyer on his or her way to life tenure on Supreme Court.
Four of the justices now serving on the high court – Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, and John Roberts – had earlier served on the D.C. Circuit court. Going back in the court’s history, three other judges ascended from the D.C. Circuit to the Supreme Court.
But even if Srinivasan never makes it to the high court, he’ll wield immense power in his new job – in some ways more power than some senators or House members have. He’s joining an appeals court that decides the fate of dozens of federal regulations and administrative actions every year, governing matters ranging from greenhouse gas emissions to telecommunications to labor law. The fact that the D.C. Circuit looms so large in the current Senate battles reflects the size and power of the federal regulatory apparatus.
Especially given congressional Republicans’ opposition to Obama's legislative initiatives, the rules issued by agencies such as the Environmental Protection Agency will make up much of Obama’s agenda for his second term.
Senate Democrats have been candid about this reality. The D.C. Circuit court “is more important than the Supreme Court because on so many of the issues that go there, they will have the final word,” Senate Judiciary Committee Chairman Patrick Leahy said earlier this year when discussing Obama’s nomination of Caitlin Halligan to serve on the D.C. Circuit appeals court. “The Supreme Court will never hear all the requests for appeals from the D.C. Circuit.”
In March, Senate Republicans were able to block Halligan as she fell nine votes short of the 60 needed to advance her nomination to a final vote.
Washington appellate attorney Andrew Pincus, the co-director of Yale Law School's Supreme Court Advocacy Clinic, cautioned that one shouldn't over-inflate the role of the D.C. Circuit. “I think that regulatory rulings are much more dispersed than they used to be, and that the government’s record is mixed everywhere, both before the DC Circuit and in other courts. It wins some and it loses some. The idea that the D.C. Circuit is singlehandedly mowing down the (Obama) Administration’s decisions is simply wrong,” Pincus said.
The D.C. Circuit “controls so much of what government does, and it’s sort of a lodestone of the hard right to make sure they control the D.C. Circuit,” Schumer said last week. Of the eight active judges on the court (including Srinivasan), four were appointed by Democratic presidents and four by Republican presidents.
Three vacancies still remain on the court and expectations have been building that the president would announce his choices to fill those vacancies by now.
“The sad fact is that even when we confirm Mr. Srinivasan today the all-important D.C. Circuit will still have three vacancies,” Schumer noted last week.
As with many things in Washington, the origins of this grudge match between Democratic and Republican senators goes back years.
In 2005, the roles were reversed. Then it was Democratic senators who were filibustering several of Bush’s judicial nominees – including potential Supreme Court nominee Miguel Estrada to serve on the D.C. Circuit – and it was Republican senators who threatened to unilaterally change the Senate’s rules to curb such filibusters.
In 2005 Democrats defended their use of the filibuster as a responsible and necessary step. Sen. Barbara Boxer, D-Calif., explained at a rally by the group Moveon.org: “We think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super-important position. There ought to be a super-vote, don’t you think so?”
To end the 2005 impasse and avert the Republicans’ move to change the Senate rules, a bipartisan group of seven senators from each party, the so-called gang of 14, agreed to use filibusters of judicial nominees only in undefined “extraordinary circumstances.”
As part of that Gang of 14 deal, three Bush nominees to the D.C. Circuit were confirmed by the Senate in 2005 and 2006.
Even eight years later those three judges still make Democrats gag: “We agreed to put some people on the bench that we have regretted since then -- Janice Rogers Brown, Thomas Griffith, Brett Kavanaugh,” Reid admitted last week.
But in Schumer’s view the blocking of a confirmation vote on Halligan “represented the demise of the Gang of 14 agreement that this Senate has operated under for the last few years,” Schumer said last week. He said, “Republicans now treat judicial filibuster as the rule, not the exception.”
Thirty-six Obama nominees to federal appeals courts vacancies have been confirmed and are now serving on the bench – but it is the D.C. Circuit that is the pivotal battle.
Led by Judiciary Committee ranking member Sen. Charles Grassley, R-Iowa, Republicans are arguing that, at eight judges (including Srinivasan) the D.C. Circuit will now be large enough to handle its caseload, even though the court is authorized to have 11 active-duty judges. (The tally excludes senior judges, some of whom hear cases part-time.)
Grassley told his colleagues a few weeks ago that once Srinivasan’s nomination was dealt with, “in regard to further nominees to this court, there’s going to be a need to show the seats need to be filled.”
Reid rejects that argument: “The number of cases in the D.C. Circuit is somewhat misleading because their cases are extremely complex, with rare exceptions.