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Washington • A partisan showdown is looming over what is known as the nation's second-highest court, with President Barack Obama poised to nominate as many as three choices for the understaffed U.S. Court of Appeals in Washington in the face of a Republican proposal to distribute its vacancies to other parts of the country.
The District of Columbia Circuit has been at the center of years of wrangling between the White House and the Senate because its judges have so much influence over national and even international matters. Many cases, heard on the fifth floor of the federal courthouse across from the Capitol, relate to the balance of power in Washington and review of actions by federal agencies that affect health, safety and the environment for all Americans.
The White House is planning to pair Obama's nominations with an aggressive push to get them confirmed despite a GOP bill to trim the number of judges on the D.C. circuit. "Republicans are taking their attempts to manipulate the federal judiciary to an entirely new level," Obama senior adviser Dan Pfeiffer said in a written statement that the White House planned to post on its blog Wednesday as part of its campaign on judicial nominations.
The White House has been frustrated by the successful blocking of one of Obama's nominees to the circuit and by key decisions there recently against Obama's agenda. The circuit overturned the administration's regulation clamping down on power plant pollution that crosses state lines, rejected its attempt to require large graphic health warnings on cigarette packages and found that Obama exceeded his power in bypassing the Senate to make recess appointments.
"We have a majority in that court that is wreaking havoc with the country," Senate Majority Leader Harry Reid argued last week on the Senate floor.
Senate Republican leader Mitch McConnell responded to Reid, "The real issue, I guess, is he disagrees with the rulings on the D.C. circuit."
Although Obama also has gotten some victories from the D.C. circuit, which upheld his health care law and his administration's rule on greenhouse gases, he was stymied in his attempts to add his own nominees to its bench until last week. Obama's first offering, Caitlin Halligan, waited two and a half years before withdrawing her nomination in March with Republicans blocking a vote on her confirmation. Obama's second nominee Sri Srinivasan, who had bipartisan credentials after arguing appeals for both the George W. Bush and Obama administrations won confirmation Thursday.
While making a concerted push for Srinivasan, the White House has been putting candidates through the vetting process to fill the other three vacancies on the circuit, which has a total of 11 judgeships set by Congress. A senior White House official, speaking on a condition of anonymity without authorization to discuss the process on the record, said officials have been checking the credentials of four candidates and expect the president to choose among them for nominations to be announced as early as this week.
But Republicans are questioning whether the D.C. circuit is busy enough to justify filling more seats. Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, has introduced legislation to eliminate one seat, move one to the 11th circuit based in Atlanta and move another to the 2nd Circuit based in New York. He says the workloads in those two circuits are much heavier than in Washington.
"Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch," Grassley said in a recent committee meeting. He compared the packing of the court to the era of Franklin D. Roosevelt, who wanted to add justices to the Supreme Court to shift the balance of power after his New Deal legislation was ruled unconstitutional, and says the White House shouldn't be complaining since the Senate has approved 193 of Obama's judicial nomination and defeated just two.
Pfeiffer said it was Republicans who have failed to learn the lessons of Roosevelt with the bill that he called "a blatant attempt to shrink President Obama's constitutional authority to fill this court." Pfeiffer said Grassley voted repeatedly to confirm Bush's nominations to the D.C. circuit and questioned what has changed since 2007, when Congress passed a law to move one seat off the D.C. circuit and set the number at 11.
"Make no mistake about it, this is court-packing in reverse and a cynical attempt to manipulate the third branch of government," Pfeiffer's statement said.
With Srinivasan's confirmation, the circuit now has four Democratic appointees and four Republican appointees among the active judges. But another six senior judges on semi-retired status regularly hear cases, and five were nominated by Republican presidents.
The debate over nominations to the D.C. circuit is not new. Bush's nomination of Miguel Estrada three and a half months after he became president was blocked for a vote by Democratic senators even though he had the clear support of a majority of senators.
The intense dispute over the D.C. circuit is also because it serves as a sort of farm team for the Supreme Court, with four current justices having served on it. And even those circuit judges who don't go on to serve on the high court often are the final word on critical cases, since the Supreme Court reviews so few lower-court decisions.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said in response to Grassley's bill that even if the D.C. circuit has a lesser caseload than some others, the cases it hears are more complex and take more time. He appealed to his fellow committee members, "Let's keep the politics, if we can, out of the D.C. circuit."
But so far there are no signs of that.