President Obama’s forthcoming push to seat three judges on one of the nation’s most influential benches holds major implications for high-profile fights over ObamaCare, financial reform and other policy priorities.
News that Obama would move at once to fill the vacancies on the U.S. Court of Appeals for the District of Columbia (USCADC) met with praise from public interest and consumer groups, who have seen the panel as an obstruction in the path to important protections.
“It’s yet another exhibit in the case that the administration is out of control,” said Tom Fitton, president of Judicial Watch, a conservative foundation that tracks legal issues.
Obama’s plan to simultaneously nominate three judges to the USCADC was first reported Tuesday by The New York Times, but it remains unclear how soon the president would announce the selections.
Seen by many as the country’s second most powerful court, the USCADC has the power to uphold or overturn decisions made by many federal agencies, putting it at the center of fights over regulations sought by the administration.
The court is in a position to help decide crucial battles over the Affordable Care Act, the Dodd-Frank Wall Street reform law and Obama’s quest to counter the effects of climate change.
It is also a traditional stepping-stone for future U.S. Supreme Court justices. Current Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas previously served on the appellate court.
As currently constructed, the 11-member court includes four judges nominated by Republican presidents, four by Democrats and three vacancies.
However, one of the Democratic appointees, Sri Srinivasan, was confirmed just last week, and five of six semi-retired “senior judges” who help with the court’s workload were installed during Republican administrations.
“The D.C. Circuit has become largely a conservative court, producing largely anti-regulatory decisions, most of which are not appealed,” said Craig Holman, a government affairs lobbyist for Public Citizen. “These three new nominations are imperative to bring a sense of balance back to the court.”
In recent years, the court has dealt a series of blows to the Obama administration’s agenda by striking down regulations on numerous fronts.
In 2011, for example, the court struck down a Securities and Exchange Commission rule meant to give shareholders a greater voice in nominating individuals to serve on companies’ boards of directors.
The “proxy access” rule had been drafted in accordance with the Dodd-Frank Wall Street reform law enacted in 2010.
Last year, the court rejected the Environmental Protection Agency’s (EPA) regulation of power plant emissions that cross state lines, saying the agency overstepped its authority under the Clean Air Act.
The decision was seen as a major setback for the administration’s air quality agenda. Proponents said the rule would have saved as many as 34,000 lives.
Similarly, the court ruled last month that the National Labor Relations Board (NLRB) exceeded its authority when it mandated that businesses place notices in the workplace and on their company websites informing employees of their right to unionize.
The ruling followed the court’s finding that Obama’s recess appointments to the NLRB were unconstitutional.
Observers say the fate of many more rules — including those still being drafted as part of Dodd-Frank and the Affordable Care Act — could be decided by the outcome of the upcoming fight over the president’s impending nominations.
The high stakes are expected to spark a major congressional showdown over both the nominees and the makeup of the court going forward.
The president is reportedly considering attorneys Cornelia Pillard, David Frederick and Patricia Millett for the positions.
By nominating them simultaneously, Obama would be picking a fight with congressional Republicans, in essence daring them to filibuster all three.
Democrats, who have complained about the GOP’s refusal to allow certain confirmations, could seize on a D.C. Circuit filibuster case as an opportunity to press for filibuster reform.
On their side are public interest groups calling for the court vacancies to be filled.
The GOP opposition is a clear effort to keep Obama from doing an important part of his job, said Sean Helle, legislative counsel for Earthjustice.
Much of the nonprofit environmental law organization’s work comes before the court, which plays a critical role in deciding fights over air and water quality, Helle said.
As currently constructed, the court has delivered a mixed bag of decisions for environmentalists, Helle said.
While it ruled against the cross-state pollution rule, it upheld other EPA regulations designed to counter the effects of climate change.
That Republicans oppose the nominations “suggests they’re happy with the court as it is currently composed,” Helle said.
Helping to lead the charge against the nominations is Sen. Chuck GrassleyChuck GrassleyDrug pricing debate going into hibernation GOP leaders host Trump's top deputies Key Republican wants details on Ohio State attacker MORE (R-Iowa), who has introduced legislation that would reduce the number of judges on the D.C. Circuit Court from 11 to eight.
Grassley, pointing to the number of cases reviewed by the court, described it as “the least busy circuit in the country.” Under his bill, two other circuits would get an additional judge.
“It is an efficient allocation of resources. It saves taxpayer dollars. And it will be a significant step towards addressing the severe imbalance in the workloads between some of these circuits,” he said.
Proponents of an 11-member D.C. Circuit counter that the cases before that body are far more complicated than most and require more time to resolve.