President Obama recently highlighted his success with judicial nominations, saying:
We are remaking the courts…[and] when it comes to the district court, [we are] matching the pace of previous Presidents. When it comes to the appellate court, we’re just a little bit behind.
This statement stands in stark contrast to the tale of Republican obstruction that President Obama and his supporters have been weaving for months. Indeed, the numbers tell a different story: When comparing Obama’s nominations to President Bush’s at the same point in his second term, Obama outpaces Bush by a ratio of 2-to-1.
President Obama is now facing opposition over a trio of nominees to the D.C. Circuit. On Tuesday, Senate Republicans halted the confirmation of Cornelia Pillard, less than two weeks after stopping another nominee to that court. A vote on the third nominee is expected to come up soon.
Perhaps even more of his nominees would be confirmed if President Obama focused on courts that desperately need more judges, rather than on the underworked D.C. Circuit. Presidents are always tempted to fill up the D.C. Circuit because it acts as a watchdog over the executive branch and hears appeals involving many federal agencies. It is also widely regarded as a stepping stone to the Supreme Court. Four current Supreme Court justices were once D.C. Circuit judges.
Both sides of the aisle have fought hard over nominees to this court, and both have suffered from those battles—just ask former nominees Peter Keisler, Miguel Estrada, and Caitlin Halligan. To address the problem, Senator Chuck Grassley (R–IA) introduced legislation earlier this year that would eliminate the three open seats on the D.C. Circuit and move two of them to other courts that need more judges. As Senator Rob Portman (R–OH), a co-sponsor of the bill, wrote last week, this would “help bring about a reasonable end to the destructive partisan fights to which both parties have contributed.” That’s an admirable goal, but whether the Senate will act on this legislation rather than continue fighting over the D.C. Circuit remains to be seen.