Skip to main content

What's at stake in power struggle over judges

By Russell Wheeler
updated 1:26 PM EST, Thu November 21, 2013
STORY HIGHLIGHTS
  • Senate Dems use "nuclear option" to strip GOP of ability to filibuster court nominations
  • Russell Wheeler says filling judgeships has grown more contentious over 20 years
  • He says each party selects statistics that aim to bolster its side of the debate
  • Wheeler: Confirm the three D.C. nominees, then take hard look at court workload

Editor's note: Russell Wheeler is a visiting fellow in the Brookings Institution's Governance Studies Program and president of the Governance Institute. From 1991 until 2005 he was the deputy director of the Federal Judicial Center, the federal courts' agency for education and research.

(CNN) -- Democrats have struck back at Republican senators' filibusters of President Barack Obama's three current nominees to the U.S. Court of Appeals for the District of Columbia circuit. The struggle signals an escalation of the confirmation battles in which the courts and litigants are largely innocent victims.

Congress has authorized a set number of judgeships for each of the 13 courts of appeals, including 11 for the D.C. Circuit. Filling vacancies in those judgeships has become more contentious over the last 20 years.

The Senate approved 88% of President Ronald Reagan's nominees, but that figure has been in the low 70s since the Clinton administration. And it takes longer. Reagan's appellate judges got confirmed on average in 60 days. For President Bill Clinton, the average was 238 days, a number that shot up to 355 for President George W. Bush and is currently 257 for Obama's appointees.

Russell Wheeler
Russell Wheeler

Eight of the 11 judgeships on the D.C. circuit are filled. Four of the eight were appointed by Republican presidents, four by Democratic presidents, including one by Obama (confirmed by a lopsided 97-0). In addition, six judges now in a form of semiretirement hear some cases. Of the six, five were appointed by Republican presidents.

Those facts are important not because judges always decide cases the way their appointing president's party might prefer. They don't; most cases in the courts of appeals don't present issues with much of a policy implication at all. But numerous empirical studies of judges' decisions in large numbers of cases with policy implications have demonstrated that, on some issues more than others, the party of the appointing president is an indicator, albeit a weak one, of how judges will decide cases -- for or against environmental claims, for example, or labor union claims -- especially in cases in which existing law is unclear.

The D.C. Circuit gets a high proportion of cases with policy implications because it receives a comparatively high number of cases involving decisions made by administrative agencies, such as the Environmental Protection Agency and the National Labor Relations Board.

That fact is basic to the battle over Obama's nominees, although it's hard to tell from the back and forth. Republicans say there is no need to fill the vacancies because the D.C. Circuit has a lower caseload than the other appellate courts.

The leader of the resistance, Sen. Charles Grassley, R-Iowa, told a recent House Judiciary Committee hearing that the country needs "smart ways to reallocate our judicial resources" -- and he's right on that point, given that Congress has created no new appellate judgeships for 23 years and seems in no mood to start doing so. So Grassley has introduced legislation to transfer two of the vacant judgeships to other courts of appeals, and abolish the third in order to save money.

Democrats have said that Obama is duty-bound to nominate judges for the vacancies because the Constitution says "he shall nominate ... Judges of the supreme Court, and all other Officers of the United States" (which includes lower court judges). But if a court clearly does not need all its vacancies filled, few would fault a president for not submitting nominations.

Obama's judicial nominees blocked

That the D.C. Circuit does not need more judges, though, is hardly clear. Both sides sling around cherry-picked statistics, with Republicans emphasizing raw case numbers and Democrats stressing the court's comparatively large number of complex agency cases. As explained, though, by a representative of the federal court's governing body, there is currently no reliable statistical method to compare the workloads of the courts of appeals.

Republicans have also said that the current four-four balance of Republican and Democratic appointees on the court shouldn't be upset. In fact, readjusting the party-of-appointing president balance has been a goal of Democratic and Republican presidents. That helps explain why the Senate refused to confirm two of Clinton's five nominees to the D.C. Circuit and two of Bush's six nominees.

It's hard to say how this battle will end. The obvious solution is to confirm the three nominees and then urge the judiciary itself to come up with a reliable way to compare the workload of the courts of appeals, as it has for district courts. If it shows that the D.C. Circuit can do its work with eight judgeships, Congress can shift the next three vacancies as they occur (three of the active judges are eligible to retire and either have reached 70 years of age or soon will).

Obvious, though, doesn't mean likely. Instead, Democrats moved Thursday to take away the Republicans' ability to use filibusters to block lower court nominations. The D.C. three will probably get confirmed -- but at a cost. Some, even while acknowledging filibuster abuse by both sides, think abolishing filibusters will harm the Senate in the long run, to say nothing of the strain it will put on already frayed relations.

The elimination of the filibuster impedes the ability of Senate Republicans to block more Obama appellate nominees. The balance among active judges on those courts when Obama took office was 60-40 Republican-to-Democratic appointees. It's now at 50-50, and Republicans were likely trying to keep it there.

One unlikely result from this battle is any expansion of Grassley's efforts to "reallocate" appellate judgeships. Only one appellate court has lost a judgeship to another circuit -- the 2007 transfer of a D.C. Circuit vacancy to the Ninth Circuit, effective January 20, 2009. The D.C. Circuit would lose more under his bill, and it's no coincidence that it's the only court without a (patronage-protecting) Senate delegation.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Russell Wheeler.

ADVERTISEMENT
Part of complete coverage on
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 9:02 PM EDT, Mon October 20, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:28 AM EDT, Mon October 20, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT