Because the U.S. Court of Appeals for the D.C. Circuit resolves many appeals from federal agency determinations that substantially affect U.S. citizens’ health, safety and welfare and crucial matters related to national security, numerous observers have characterized the tribunal as the nation’s “second most important court.” Indeed, President Barack Obama, as a senator, remarked that the “D.C. Circuit is widely viewed as the second-highest court in the land.” When the president was inaugurated, two of the 11 D.C. Circuit judgeships experienced vacancies. Yet, 18 months later, he has nominated no one for either opening. Thus, Obama must promptly nominate, and the Senate must expeditiously confirm, outstanding nominees for those vacancies.
The D.C. Circuit is the court of last resort for 99% of appeals from the U.S. District Court for the District of Columbia, a number of which contest agency actions, such as public land use decision-making, throughout the United States. The D.C. Circuit is also the final stop for a similar percentage of the many direct appeals that Congress authorizes from adverse agency determinations in critical areas, including environmental, labor, communications and civil rights law. The court is pivotal to nearly all federal regulation, playing a role that equals or eclipses that of the Supreme Court because, for instance, most challenges to environmental rules are in the D.C. Circuit. The Supreme Court actually reviewed only one D.C. Circuit appeal in the 2008-09 term. Openings in two positions can impede speedy, inexpensive and equitable disposition.
There are a few reasons for the prolonged vacancies. Because the court is the nation’s second most important, Democratic and Republican presidents have often looked to the tribunal for Supreme Court nominees. In fact, Chief Justice John Roberts Jr. and justices Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas all were D.C. Circuit judges. This factor has led the political party that does not control the presidency to scrutinize and even obstruct D.C. Circuit nominees whose perspectives they oppose, because D.C. Circuit confirmation would position them for Supreme Court nomination. These notions may well explain why the Senate did not confirm Roberts for the D.C. Circuit when he was first nominated, by President George H.W. Bush, and why it failed to approve Elena Kagan when President Bill Clinton nominated her.
Several reasons may explain the dearth of Obama nominees. The White House has been preoccupied with intractable problems left by earlier administrations. These include the Iraq and Afghanistan wars, the Guantánamo Bay, Cuba, prison and the worst recession since the Great Depression. Moreover, the administration has encountered difficulty implementing a new government. For example, several upper-echelon U.S. Department of Justice positions lack permanent appointees.
Insofar as the chief executive has attempted to fill federal court openings, he has emphasized the Supreme Court vacancies and openings on appeals courts in the most dire straits. Illustrative are the 4th Circuit, which had five empty seats, and the 2d Circuit, which had four. Thus, the White House devoted much attention to these tribunals, and it has enjoyed considerable success because the two courts may soon have one vacancy each.
Despite these phenomena, Obama must turn his attention to the D.C. Circuit vacancies. The quantity, complexity and importance of the tribunal’s cases mean that it requires the full complement of authorized judges to promptly, economically and fairly decide appeals. The president should consult Rep. Eleanor Holmes Norton (D-D.C.) because numerous judges, attorneys and scholars in the Capitol region possess the necessary intelligence, diligence, independence, character and even temperament, as well as the expertise in constitutional, administrative, legislative and national security law. Nonetheless, the D.C. Circuit is a national tribunal, and Obama should nominate the best candidates in the whole country. A recent report suggesting that Caitlin Halligan, the general counsel in the Manhattan District Attorney’s Office, is undergoing an FBI background check for one vacancy is a promising sign.
President Obama must swiftly nominate, and the Senate must promptly confirm, two highly qualified nominees for the D.C. Circuit. America’s second most important court needs all of its judges to deliver justice.
Carl Tobias is the Williams Professor at the University of Richmond School of Law.