If President Obama has his way, he will get to fill three more of the 11 slots on the D.C. Circuit Court of Appeals, the second most powerful court in the country. Obama already has filled one vacancy with Sri Srinivasan, who was confirmed back in May.
On Thursday, the Senate Judiciary Committee approved another nominee for the D.C. Circuit, law professor Cornelia "Nina" Pillard.
That means two of the president's picks — Pillard and Patricia Millett, who was approved by the Judiciary Committee on Aug. 1 — are now waiting for a full Senate vote. But Republicans are signaling they will try to block all three remaining nominations, including Robert Wilkins, who is awaiting a Judiciary Committee vote.
When it comes to Millett and Wilkins, the most common complaint you will hear from Republicans actually has nothing to do with the qualifications, or even ideology, of the individuals.
As Sen. Jeff Sessions of Alabama puts it: "We do not need all three circuit judges. I'm not sure we need any."
Sen. Tom Coburn of Oklahoma also says it comes down to a cost-benefit analysis. "We have a lot of circuits that have a whole lot of stuff to do that don't have the capability, and we got the D.C. Circuit that doesn't have enough to do, and we ought to put money where we need judges," he says.
"I'm not really voting against the nominees," explains Sen. Orrin Hatch of Utah. "I'm voting against packing the court."
"Packing the court" is a phrase Hatch and many other Republicans have been using to draw a parallel between Obama and what the late President Franklin Delano Roosevelt threatened to do when the Supreme Court kept striking down his New Deal legislation.
"It's not historically accurate," says Sid Shapiro, who teaches law at Wake Forest University, but "it's a great phrase."
Shapiro says the court-packing analogy doesn't work here because Roosevelt had wanted to add seats to the Supreme Court — while Obama is just trying to fill existing seats on the D.C. Circuit. That's actually what presidents get to do when they win an election.
But Republicans know Obama can tilt a now evenly divided roster of active judges toward Democratic appointees by filling the three vacancies. And it's a court that's considered a top priority. Four of the nine justices on the Supreme Court once sat on this bench. Half of the D.C. Circuit's cases involve challenges to federal regulations — meaning environmental rules, labor policy and billions of dollars are at stake.
But Republican senators like Chuck Grassley of Iowa say these judges just don't have enough to do.
"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," he says.
So Grassley is pushing legislation that would reduce the court from 11 seats to eight. He would get rid of one seat entirely and give the other two seats to the appeals courts in New York and Georgia, which he says have bigger caseloads.
Democrats note that Grassley happily voted to fill more than eight seats on the D.C. Circuit in the past — back when Republican presidents were at the helm.
And critics argue Grassley isn't calculating caseload correctly. Carl Tobias of the University of Richmond law school says there may be fewer cases before the D.C. Circuit, but they're way more labor-intensive.
"Administrative agency appeals can be exceedingly complex with hundreds of parties and huge records that run to 50,000 pages. And they can take years to resolve," Tobias says.
Judges across the country agree. Just this spring, the Judicial Conference of the United States, a representative body of federal judges, concluded the D.C. Circuit still needed all 11 seats for its caseload. Traditionally, the Senate defers to the conference's recommendations.
Democrats like Richard Blumenthal of Connecticut say if the Republicans are really determined to block these nominees, he would support changing Senate rules to weaken their ability to filibuster. It's a threat known as the "nuclear option."
"Drastic action is certainly appropriate if able and qualified nominees are blocked," Blumenthal says.
But Republican Susan Collins of Maine has a warning for him.
"I think it's incredibly shortsighted of Democrats who are proposing that because if control of the Senate changes, they would be stuck with rules that disadvantaged the minority party," she says.
The debate over whether to use the nuclear option came up earlier this year when Democrats were trying to get Cabinet and administrative agency appointees through. But the situation with judges has different implications. Unlike appointees for the executive branch, judges have life tenure. So when you go nuclear for judicial nominees, any retaliation will be a lot more permanent.
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