The Constitution requires Senate consent before the president can appoint an individual federal judge and gives Congress authority to create, abolish or rearrange federal judicial positions. These two responsibilities converged when President Obama made three nominations to the U.S. Court of Appeals for the D.C. Circuit, which clearly needs no more judges.
Creating a politically useful statistic requires only an agenda and a calculator, but this debate needs something more objective. In a July 2006 letter, Judiciary Committee Democrats opposed more D.C. Circuit appointments for two reasons: The court’s caseload had declined, and more pressing “judicial emergency” vacancies had not been filled. Assuming that those criteria were useful for Republican nominees, let’s apply them now to Democratic nominees.
Democrats opposed more Republican D.C. Circuit appointments in 2006 because “written decisions per active judge” and “total number of appeals filed” had declined. Since then, these benchmarks have declined by 27 percent and 18 percent, respectively. D.C. Circuit Chief Judge Merrick Garland confirms that cases scheduled for argument per active judge have also declined by 11 percent since then. According to the Administrative Office of the U.S. Courts, the D.C. Circuit ranks last among all circuits in new appeals coming in and resolved appeals going out. Democrats also opposed more Republican D.C. Circuit appointments in 2006 because judicial emergency vacancies had not been filled. Judicial emergencies have increased by 90 percent since then, and the percentage of those vacancies with nominees has declined from 60 percent to only 47 percent.
No Democrat has either said that the criteria used to block Republican nominees in 2006 were wrong or explained why different criteria should be applied to Democratic nominees today.
Why would President Obama make three nominations to a court that so obviously does not need them?
It is not because his judicial appointments overall have been stymied. He has appointed more than twice as many judges this year than at the start of President Bush’s or President Clinton’s second term and has already appointed one-quarter of the entire federal judiciary.
So what explains these unnecessary nominations? President Obama said after his re-election that he is not going to wait for Congress to act, but will take unilateral executive action to implement his agenda. The D.C. Circuit, more than any other, reviews decisions and actions by the executive branch agencies implementing that agenda.
It is no wonder, then, that the Senate majority leader has said that he wants to “switch the majority” on the D.C. Circuit. One liberal activist told The Washington Post that “the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.”
America is a republic, a system in which the people govern through their elected representatives. America’s founders believed, therefore, that the legislative branch should be, in a sense, first among equals. The American people have a right to question a political agenda that can only be achieved through bureaucrats and judges, neither of whom are elected.
This is why these individuals have been nominated to this particular court, and it is the reason they should not be confirmed. Predictably, the majority once again threatens to change the confirmation process, but once again they forget what happened less than a decade ago.
Democrats initiated the practice of using filibusters to defeat majority-supported judges. They led three times as many filibusters by this point in President Bush’s tenure as have occurred under President Obama.
In fact, Democrats filibustered the same nominee to the D.C. Circuit no less than seven times, still an all-time record in American history. Republicans talked about, but did not pursue, changing the Senate’s written rules to address this situation. That effort would have involved committee hearings and public debate.
Today, in contrast, Democrats are threatening to change Senate confirmation practice through a unilateral decree by the presiding officer. That would be the wrong response imposed in the wrong way, further politicizing the confirmation process and disrupting the way that the Senate has traditionally operated.
In politics, as in life, you don’t always get your way. When it comes to judicial appointments, however, President Obama gets his way the large majority of the time. In this instance, he wants to stack a court that needs no more appointees with judges he believes will approve his political agenda coming out of his executive branch.
The better course would be to put his agenda before the American people by putting it through Congress and to appoint judges to courts that really need them.
Sen. Orrin G. Hatch (R-Utah) is a member and former chairman of the Senate Judiciary Committee.