Senate should move quickly to fill vacancies on D.C. Circuit

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The tribunal’s importance partly explains the prolonged openings. Many D.C. Circuit cases implicate separation of powers and appeals of federal administrative agency determinations, which affect public health, safety and welfare and involve millions of individuals and billions of dollars. Democratic and Republican presidents have confirmed many Supreme Court nominees from the tribunal. Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsberg were D.C. Circuit members. This phenomenon has animated the party not occupying the White House to meticulously review and block D.C. Circuit nominees whose views they oppose, lest those nominees be appointed to the court and later secure Supreme Court nomination. These propositions suggest why the Senate did not approve either President George H.W. Bush’s 1991 D.C. Circuit nomination of Roberts or President Bill Clinton’s 1999 D.C. Circuit nomination of Elena Kagan. However, President George W. Bush did appoint four D.C. Circuit judges, including Roberts, so the court had eleven members before his Supreme Court elevation.

A few other considerations explain the dearth of Obama confirmations. The White House has been focused on two wars and the debilitating, lengthy recession. It stressed two Supreme Court openings and courts facing emergencies when treating vacancies. For instance, the Fourth Circuit experienced six openings and the Second Circuit four, so Obama emphasized them and neither has vacancies today.

Obama and the Senate must expeditiously fill the D.C. Circuit openings. The circuit caseload’s importance and complexity mean it requires all eleven judges to deliver justice. Obama did nominate Caitlin Halligan, the Manhattan District Attorney’s general counsel, in September 2010; however, Republicans stopped her floor vote by opposing cloture during December 2011. Obama renominated Halligan and nominated Sri Srinivasan, the Principal Deputy Solicitor General, in June 2012 and renominated them on January 3, 2013 because the 112th Senate processed neither.

The new Senate must rapidly consider both excellent nominees. On February 14, the Judiciary Committee approved Halligan 10-7 with Sen. Lindsey Graham (R-S.C.) voting “pass.” The Senate may vote as early as this week on cloture for Halligan. Because the President’s well qualified nominees like Halligan deserve yes or no votes, at least five Republicans must join Democrats in favoring cloture. Judiciary Committee Chairman Patrick Leahy (D-Vt.) recently indicated Srinivasan would have a March hearing, which was delayed last year to accommodate Republican requests for additional information because of concerns about Srinivasan’s participation in settling a controversial discrimination case. Leahy said panel members with questions could ask them directly in Srinivasan’s hearing. A spokesperson for Ranking Member Chuck Grassley (Iowa) said he “never implied that Srinivasan did anything inappropriate,” but GOP senators need case documents to independently assess Srinivasan’s possible role and “make an informed decision on his nomination.” Moreover, the administration must quickly proffer two other superb D.C. Circuit nominees, who should receive expeditious Senate review.

President Obama must speedily nominate, and senators promptly evaluate, stellar D.C. Circuit nominees because the second most important court needs all its jurists to dispense justice. The Senate can begin this week by voting for cloture on Halligan.

Tobias is the Williams Chair in Law at the University of Richmond.

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