Obama Seeks to Transform Second Highest Court

This week, President Obama nominated three judges to the U.S. Court of Appeals for the District of Columbia Circuit, often viewed as the second highest court in America. Confirmation of these nominees would mark a substantial shift in the ideology of this powerful court that would likely last for decades. Currently, there are 14 sitting D.C. Circuit Court judges, eight of which are active and six of which are on senior status. Of the eight active judges, four are Republican appointees and four are Democrat. If President Obama’s nominees are seated, the Democrats would gain a 7-4 margin in active D.C. Circuit judges.

The significance of the makeup of the D.C. Circuit bench cannot be overstated. This court is responsible for deciding crucial questions of administrative law ranging from the constitutionality of legislative vetoes of federal agency rules to the validity of agency regulations that carry sweeping national implications. In the past year alone, the court has halted the Administration’s efforts in two crucial decisions which may have something to do with the apparent rush to restructure the court.

In January, the court ruled that the President’s “recess” appointments to the National Labor Relations Board (NLRB) were unconstitutional because the Senate was in session, despite the President’s declaration that the Senate was adjourned. The President’s assertion relied upon a Department of Justice advisory opinion contending that the President has the right to determine whether or not the Senate is in recess. In other words, if it had not been for a correct ruling from the D.C. Circuit, the President’s opinion — not the Constitution — would have been the law of the land. By ruling against the President, the court invalidated his three appointments to the NLRB, at least temporarily stymying President Obama’s aggressive agenda to implement pro-union labor law reforms.

In August, 2012, the same court struck down the EPA’s authority to implement the Cross-State Air Pollution Rule. Alabama was one of 24 states who filed the suit against the EPA to stop the enforcement of the Rule intended to reduce coal pollution from power plants in some regions of the country through a cap-and-trade program. The court’s decision relied heavily on federalism arguments and held that the EPA had violated the “federalism bar” contained in the Clean Air Act which the Supreme Court and the D.C. Circuit have consistently interpreted to mean that states have “the right to take the first crack at implementing required emissions reductions.” Essentially, the court held that the EPA exceeded its authority in substance and in practice with the Rule.

Aside from the fact that D.C. Circuit Court judges have the power to make a lasting impact on federal policy, of greater significance is the fact that judges appointed to the D.C. Circuit are often placed on the short list for a nomination to the U.S. Supreme Court when they are politically aligned with a sitting president. Four of the U.S. Supreme Court’s sitting justices are over the age of 70 and with three-and-a-half years remaining in President Obama’s term, there is great likelihood that he will have the chance to seat at least one more justice. If he succeeds in seating these three liberal judges to the D.C. Circuit, it is a near certainty that one of these judges will be the President’s next nominee to the U.S. Supreme Court. While it is a liberal president’s prerogative to nominate liberal judges, it is not this President’s prerogative to force through a stacked nomination of three judges to this esteemed court.

Senate Judiciary Republicans have indicated that they intend to carefully scrutinize any attempt to stack the D.C. Circuit in this manner and for good reason. As The Wall Street Journal points out, “[t]he court doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system.” While the court may be underworked, it is unquestionable that the work the D.C. Court is doing has long-term national significance, particularly in defining the limits of power for federal agencies.
President Obama himself said that “the (D.C. Circuit) court’s decisions impact almost every aspect of our lives.” If this is to be believed, then Senate Republicans should ready themselves for battle.

Katherine Robertson serves as senior policy counsel for the Alabama Policy Institute (API). API is an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, please call (205) 870-9900 or email her at [email protected].

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