Republican Court Unpacking Plan Takes Judicial Manipulation to a New Level

Republicans in the Senate have made no secret of their efforts to block the President’s constitutional responsibility to appoint federal judges. They have filibustered unquestionably qualified nominees, like Caitlin Halligan. And their obstruction of the confirmation process kept several nominees waiting more than a year for a vote.  In fact, on average, our judicial nominees wait more than three times as long as those of President Bush after being approved by the Senate Judiciary Committee.  And for no good reason.  Earlier this year, four Circuit Court judges were confirmed by the Senate after waiting at least 250 days – even though each one was confirmed with overwhelming bipartisan support.            

But now, Republicans are taking their attempts to manipulate the federal judiciary to an entirely new level. Right as our D.C. Circuit Court nominee Sri Srinivasan was confirmed unanimously, Republicans started pushing a proposal to reduce the number of judges on the D.C. Circuit from 11 to 8, a blatant attempt to shrink President Obama’s constitutional authority to fill this court. As President Franklin Delano Roosevelt learned when he tried to pack the Supreme Court, the three branches of government are coequal for a reason. Neither the executive branch or the legislative branch should use the third branch to a pursue a partisan agenda.

And on the merits, Senator Grassley’s “court unpacking proposal” fails to make any sense. In fact, in 2005, the Senate – including Senator Grassley – voted to confirm Judge Janice Rogers Brown to the D.C. Circuit as the tenth active judge and Judge Thomas Griffith as the eleventh active judge.  In 2006, the Senate – again, including Senator Grassley – voted to confirm Judge Brett Kavanaugh as the tenth active judge. Voting for judicial nominees for court seats under one president while proposing to eliminate those same seats under the president of a different political party smacks of partisan politics.

The proposal raises even more questions because in 2007, Congress passed a law to move the D.C. Circuit’s 12th seat, agreeing that the Court needed 11 seats. What has changed since then, other than the President? There are currently eight active judges on the D.C. Circuit. Republicans had no problem filling the ninth, tenth, and eleventh seats on this Court during Republican presidential administrations, but under this President, they want to remove them. In fact, the past five presidents each have had at least three judges confirmed to the D.C. Circuit – and 15 of the past 19 judges confirmed to this Court have been appointed by Republican presidents.  But so far, only one of President Obama’s nominees has been confirmed.

Make no mistake about it: this is court packing in reverse and a cynical attempt to manipulate the third branch of government.

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