By Alexander Bolton - 05/29/13 09:00 AM EDT
President Obama is seeking to retake the political offensive by launching a new battle that seeks to highlight Republican “obstructionism.”
Thrown off course by a series of controversies and scandals, the White House is going on the attack by focusing on judicial nominees.
GOP senators made it clear in the lead-up to last week’s 97-0 vote on Sri Srinivasan that they will balk at confirming additional judges to the court because of what they characterized its light caseload.
The decision to appoint new judges is a clear indication that the White House is closely working with Senate Majority Leader Harry Reid. The Nevada Democrat has repeatedly expressed frustration this year with GOP tactics, and is considering changing the upper chamber’s procedures for judicial nominees.
The new nominees, who have yet to be named, could decide the fate of Obama’s two biggest legislative accomplishments — the 2010 Affordable Care Act and the Dodd-Frank Wall Street Reform Act — which fall under the D.C. Circuit’s jurisdiction. The court is also expected to handle Obama’s anticipated attempt to combat climate change through regulations, which will attract a slew of legal challenges.
The Democratic base, which prodded Obama on judicial nominations throughout his first term, greeted the bold action enthusiastically.
“It’s about time,” said George Kohl, senior director at Communications Workers of America. “The Republicans have succeeded in obstructing nominees and find the flimsiest of excuses. By appointing three judges, we’ll cut through that and bring to the surface the key issue, which is their obstructionism.”
After difficult weeks of playing defense on the Internal Revenue Service scandal, the probe into last year’s Benghazi attack and the Department of Justice’s investigation of The Associated Press, White House press secretary Jay Carney sought to put pressure back on Republicans in Congress.
“On some of the nominees there have been obstacles thrown up by Republicans, as you know, which, unfortunately, is part of a practice of slowing down or trying to block highly qualified nominees from consideration by the Senate,” he told reporters Tuesday aboard Air Force One.
Democratic operatives say Obama needs to move past the controversies over the IRS and the Departments of State and Justice, which they argue have been largely trumped up by Republicans.
“Certainly the president wants to talk about what his agenda is as opposed to what the Republicans would want him to talk about,” said David Di Martino, a Democratic strategist. “He’s trying to reassert his agenda in the news and he’s doing that by finding out other ways to talk about his agenda and pointing out that Republicans are blocking everything he’s trying to do, from judges to nominees to legislative initiatives.”
Republicans think the maneuver has another aim: to build public support for triggering the nuclear option, a controversial tactic to change the Senate’s rules with a simple majority vote.
If Republicans use filibusters to stymie the appellate court nominees — along with the nominations of Richard Cordray, Obama’s choice to head the Consumer Financial Protection Bureau, Gina McCarthy, his pick to head the Environmental Protection Agency (EPA), and Tom Perez, the nominee for Labor secretary — Democrats say they will be justified in changing the rules by a party-line vote.
“They want to do the nuclear option and we haven’t given them a reason to,” said a GOP aide. “They’re looking for an excuse to do something dramatic to ruin the Senate.”
Democrats say the president is entitled to fill vacant slots on an important court.
“This is not designed as a political power play,” said a senior Democratic aide. “Republicans are squealing because they are at risk of having their obstruction spotlighted.”
Sen. Chuck Grassley (Iowa), the ranking Republican on the Judiciary Committee, argued in an op-ed published Monday in USA Today that the president is to blame for many judicial vacancies.
“Only eight of 32 judicial emergency vacancies have a nominee. We can’t act on nominations that haven’t been made,” he wrote.
Administration officials counter that Obama’s judicial nominees have waited between three and four times longer for Senate votes than former President George W. Bush’s picks.
Of Bush’s 61 circuit nominees, 35 waited fewer than 30 days for a floor vote, while only one of Obama’s 33 circuit judges has waited less than a month.
Liberal groups that closely track the judiciary say Obama’s short list for the D.C. court include consumer advocate David Frederick, Georgetown law professor Cornelia Pillard and appellate litigator Patricia Ann Millett.
With Srinivasan’s confirmation, four Democratic and four Republican appointees now sit on the D.C. Circuit, which has jurisdiction over administrative law, including the signature accomplishments of Obama’s presidency: healthcare and Wall Street reform.
Republicans are expected to block two or, more likely, all three of Obama’s nominees, who would tilt the court to the left. The court’s composition is especially important for the biggest decisions, which are eligible to be reviewed by the entire court, or en banc.
Democrats were dismayed earlier this year when the court declined to rehear a case in which it struck down an EPA rule intended to address air pollution drifting across state lines. They were enraged by another ruling invalidating Obama’s recess appointments to the National Labor Relations Board, which has implications for the recess appointment of Cordray to head the Consumer Financial Protection Bureau.
“You have a majority in that court that is wreaking havoc with the country,” Reid fumed on the Senate floor last week.
Senate Republican Leader Mitch McConnell (Ky.) said, “The whole purpose here is to stack the court. So the real issue here, I guess, is he disagrees with the rulings of the D.C. Circuit.”