Today the Senate is scheduled to vote on the nomination of Patricia Millett to the U.S. Court of Appeals for the D.C. Circuit.
Now that Senate Majority Leader Harry Reid (D–NV) successfully deployed the “nuclear option” to eliminate Senate Republicans’ ability to filibuster appellate and district court nominees, he can push through three nominees to the D.C. Circuit. This change will likely tip that court in favor of President Obama’s policies that come under its review.
President Obama has paid particular attention to filling up the D.C. Circuit this year, even ahead of other courts that are seriously understaffed and have declared “judicial emergencies.” Congress has authorized eleven spots for full-time judges, and there are currently eight active, full-time judges and six semi-retired judges (who make up the work of roughly 3.25 full-time judges). However, the D.C. Circuit’s caseload has been steadily decreasing over the past two decades, and current D.C. Circuit judges have admitted that there “wouldn’t be enough work to go around” if they had any additional judges.
The D.C. Circuit—widely regarded as a stepping stone to the Supreme Court—hears a number of important cases involving federal agencies, so it is a key player in restraining the excesses of the executive branch. For that reason, any President would naturally want to pack that court with his preferred judges.
But the writing is on the wall for President Obama’s remaining time in office: With a Republican-controlled House, he will likely turn to administrative actions to enact his policies. He has, after all, threatened, “If Congress won’t act, I will.” And from environmental regulations to sham “recess” appointments to the “poster rule,” the D.C. Circuit has ruled against President Obama’s unilateral actions in a series of cases.
With three more judges with lifetime appointments on the D.C. Circuit, President Obama may be more successful before that court and secure a legacy beyond his presidency. Indeed, President Obama and Senator Reid have made clear that they will stop at nothing to (in the President’s words) “remake the courts.”