I’ll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit’s caseload is. What they care about is the court’s ideological balance.
Liberals say the D.C. Circuit has been making too many conservative rulings. It “has made decisions that have frustrated the president’s agenda,” complains Democratic legal activist Nan Aron. Jonathan Chait, of New York magazine, says today’s D.C. Circuit has been “one of the right’s most potent weapons during the Obama era.” And Sen. Chuck Schumer, a New York Democrat, has complained about the court’s rulings on recess appointments and financial regulations, vowing that the new nominees will change its course.
The court is actually balanced between Democratic and Republican appointees. In recent testimony before the House Judiciary Committee, C. Boyden Gray noted that the court has been reversing the Obama administration’s regulatory actions at a lower rate than it did those of the Bush administration. Putting too much weight on such statistics is a mistake; the reasoning in the cases is more important. Yet when you look at the specifics, the Democratic indictment is even more off base.
Obama is the first president to make a recess appointment when the Senate said it wasn’t in recess; of course courts objected. In the financial case, the court merely said that the Securities and Exchange Commission had to follow the law about responding to public comments on a regulation’s costs and benefits before issuing it. As Adam White points out in the Weekly Standard, the court hasn’t touched regulations that followed the law.
One of the vacancies Democrats are trying to fill used to be held by John Roberts. After he became chief justice, Bush nominated the impeccably qualified Peter Keisler for the spot. The Democrats blocked him, and the seat has gone empty ever since. A reasonable case can be made against a minority party blocking judicial nominations, or for it. What can’t reasonably be argued is that Democrats should be able to use the tactic to keep a judgeship open until they have the power to fill it with a liberal, at which point Republicans have to stand down.
Republicans shouldn’t accept these rules. On this issue, the president’s agenda deserves to be frustrated.