Post-Shutdown, GOP Finds New Fight Against Obama's Nominees

Jay Carney, President Obama’s press secretary, called the filibuster “enormously disappointing” and said the White House has no intention of nominating anyone in Watt’s stead.

“We know he’s qualified and we know he would do a good job and there’s a heck of a lot of important work that needs to be done in that agency and Mel Watt needs to be in that job so that this work can move forward," Carney told reporters.

The Millett nomination is more complicated. McConnell characterized her as “no doubt a fine person – this is nothing personal.” But the D.C. Circuit as currently constituted has eight judges -- four appointed by Republicans and four appointed by Democrats. Three vacancies exist and Republicans charge the Obama administration wants to fill them only to arrange for favorable judicial outcomes.

Obama has managed to place only one judge on the D.C. Circuit during his five years in office. Last May the Senate confirmed Sri Srinivasan to an open seat -- the panel’s first new judge since 2006. The White House withdrew the nomination of Caitlin Halligan in March, ending a nomination process that lasted more than two years in the face of Republican opposition.

Sen. Chuck Grassley (R-Iowa), the ranking member on the Senate Judiciary Committee, insists that the current caseload “simply doesn’t justify adding additional judges to this court, particularly when additional judgeships cost approximately $1 million per year, per judge.”

In terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005, that number was 1,379. Last year, it was 1,193, a decrease of 13.5 percent.

“The bottom line is this -- the objective data clearly indicate the D.C. Circuit caseload is very low and that the court does not need any additional active judges,” Grassley said.

The only reason Obama is looking to fill the vacancies, Grassley argued, is to basically stack the deck. The D.C. Circuit is considered second only to the U.S. Supreme Court in terms of importance, issuing rulings on cases involving the federal government, including rulings on regulatory measures. Any Obama appointments could potentially shift the panel’s judicial philosophy more toward the satisfaction of the White House.

“It is difficult to see why we would be moving forward with additional nominations to this court, especially in a time when we are operating under budget and fiscal constraints,” Grassley said. “Unfortunately, the justification for moving forward with additional D.C. Circuit nominees appears to be a desire and intent to stack the court in order to determine the outcome of cases this court hears. It is clear that the president wants to fill this court with ideological allies for the purpose of reversing certain policy outcomes.”

Leahy maintains it’s impossible for the president to “pack” the D.C. Circuit when all he’s attempting to do is fill vacancies – some of which have been open for years.

The D.C. Circuit doesn’t face the smallest caseload, Leahy said. That distinction falls to the 10th Circuit Court of Appeals, in Denver.

“Despite the lower caseload on the Tenth Circuit, the Senate has continued to confirm nominees to that court without any complaints from Republicans about the workload,” Leahy said.

Regardless, Millett fell short of the 60-vote threshold, 55-38. Liberal advocacy groups, like People for the American Way, derided the Republican filibuster, saying the GOP is practicing “scorched earth” politics.

"The GOP's unprincipled blockade of D.C. Circuit nominees is unprecedented, and it's shameful," said Marge Baker, PFAW's executive vice president. Republicans, she added, are keeping the president “from fulfilling his Constitutional obligation to fill existing vacancies on the critically important federal courts."