In essence, two branches of government, unable to come to agreements, are starving the third.
“What’s so troubling is this is not another federal agency,” said Carl Tobias, a law professor at the University of Richmond who studies judicial nominations. “This is another branch of the federal government. It’s a coequal branch, and it needs to be able to operate. That’s what’s so galling.”
A court with power history
The hulking, eight-story courthouse sits just down the street from the Capitol and the Supreme Court, blending into a phalanx of federal buildings. But its power is evident the instant one steps inside. Inside the entrance of the Elijah Barrett Prettyman US Courthouse, which houses the D.C. Circuit, are panels noting some of its historic decisions — whether newspapers had a First Amendment right to publish the Pentagon Papers, and whether President Nixon had to turn over tapes from his conversations in the Oval Office.
The lobby is graced by gold-plated lettering on a marble wall of the names of each justice to serve in the courthouse since 1893. But it’s what is missing that is most notable. No name has been added since 2006, the second-longest gap since 1924.
Inside a fifth-floor courtroom hang portraits of 22 past judges. On one side is Ruth Bader Ginsburg, who went on to the Supreme Court, the nominee of President Bill Clinton. On another wall is Robert Bork, whose nomination in 1987 by President Reagan to the Supreme Court was stymied by Democrats in a way that helped set the standard for much of the current partisanship in the judicial nominating process.
On a recent Friday, as the clock struck 9:30 a.m., a court official entered and called, “Stand please! Oyez, oyez, oyez,” and three judges in robes filed in and took their seats.
High-powered attorneys, each granted 10 minutes, stepped to the lectern and argued their case before the judges, who didn’t hesitate to interrupt. Two cases were heard this day, one questioning whether a police officer had a right to search a man for drugs; another on whether foreign heads of state can be sued in American courts, or whether they have diplomatic immunity.
The court has a particularly powerful jurisdiction. Nearly two-thirds of the court’s cases involve the federal government in some capacity, compared with 19 percent for other federal courts, nationwide. It reviews decisions and orders from the Federal Communications Commission, the Postal Regulatory Commission, and the Federal Election Commission. It hears challenges to the Clean Air Act, to national drinking water regulations, and to official designations of “foreign terrorist organizations.”
But the court has taken on a more partisan bent that colors the decisions that do come down: Of the seven judges currently on the court, four were appointed by Republicans and three were appointed by Democrats. Of the six senior judges — who have retired, but still hear cases — five of them were appointed by Republicans.
Obama became the first president in more than half a century to not win any appointments to the court during his four-year term, despite nominating two candidates for the bench (he hasn’t named candidates for the two other vacancies, one of which became open only last month).
Cases at the appeals court are heard by a three-judge panel, with the judges randomly assigned to cases in a system designed to limit chances of an ideological imbalance.
To be sure, judges say they are impartial, driven by trying to determine the letter and legislative intent behind the law. But they are appointed by presidents who carefully review their backgrounds and it is widely expected they often will vote in a way that is ideologically in line with the person who nominated them.
And at the D.C. Circuit court, the ideological odds are stacked: Of the 13 judges, both active and senior, who can hear cases, nine of them were appointed by Republicans.
Over the past six months, there have been 191 oral arguments heard by three-judge panels at the D.C. Circuit court, according to the public schedule. In nearly 80 percent of those cases, at least two of the three judges on the panel were appointed by Republican presidents — and in nearly one-quarter of the cases all three judges were Republican appointees.
The main impact of having fewer judges — and having none approved since 2006 — is the partisan tilt of the court. The last time a Democratic president’s nominee to the court was confirmed was in 1997.
Several recent decisions illustrate the impact of having a court without any Obama nominees.Continued...