fb-pixelAs Obama, Senate collide, courts caught short - The Boston Globe Skip to main content
March 10

As Obama, Senate collide, courts caught short

The partisan deadlock in Washington hits much more than budgets. More than ever, judicial picks are ideological cannon fodder.

In the past several months alone, the court has weakened antipollution regulations, and sided with tobacco companies. The court is slated to rule on challenges to regulations written to comply with the Dodd-Frank financial regulations law, which was Congress’s chief response to the Wall Street meltdown.AP file; AFP/Getty Images file

WASHINGTON — Just a few blocks from the US Supreme Court sits what is widely considered to be the nation’s second most important judicial body.

But unlike its senior sibling, which has a full slate of judges, including two appointments made by President Obama, the US Court of Appeals for District of Columbia Circuit is fundamentally broken in ways that are rippling across Washington and the country.

It has only seven out of 11 judges, the worst vacancy rate in its history and higher than any other federal circuit court nationwide. Obama has never been able to get a nominee on the court, symbolizing the Senate’s failure to approve nominations to dozens of courts nationwide. As a result, four years after Obama took power in the White House, Republican appointees still hold a 4-to-3 majority over those named to the court by Democratic presidents, and that has resulted in a series of conservative rulings that affect the lives of millions of Americans.

The impact on Obama’s agenda, observers said, is clear. In the past several months alone, the court has weakened antipollution regulations, sided with tobacco companies, and restricted the president’s ability to make appointments without congressional approval.


And the court’s power over White House policies is about to grow exponentially. It is slated to rule on challenges to regulations written to comply with the Dodd-Frank financial regulations law, which was Congress’s chief response to the Wall Street meltdown. And when regulations made by government agencies to comply with the new national health care law are challenged, it will likely be this court that hears the cases — making its ideological balance all the more relevant.

The partisan gridlock in Washington — largely fueled by the determination of Republican legislators to block Obama’s agenda by any means — manifests itself in almost everything Washington tries to do these days. It is most visible in the ongoing budget stalement and the drama that nearly took the nation right over the so-called fiscal cliff, but the impact on the federal court system, while less obvious to the public, is no less damaging.


While the Senate’s slowness in approving judges nationwide has been noted, the practical and political impact on the courts of that holdup has received far less attention. The Senate has turned away one nominee after another — with a single Republican senator often able to block appointments without explanation — and the White House has often been powerless in response.

“It used to be the case that with judges, for the most part, Washington functioned,” said White House counsel Kathryn Ruemmler. “And that noncontroversial, good quality, fair-minded judges got confirmed in regular order.”

That is no longer the case.

In what is a growing problem infecting the nation’s federal courts — both small and large, from San Francisco to Allentown, Pa. — judges are taking far longer to gain approval from the Senate. It’s the result of a decline in decorum among senators, the willingness of the Republican minority to use tactics that were previously off-limits, and an overall rise in partisanship.

The result is that Washington gridlock is resulting in docket gridlock across the country, with courts not getting the judges they need as a result of dysfunction in the Senate.

There are currently 87 vacant seats out of 874 seats on the federal bench, continuing one of the longest periods of high vacancy rates in recent history. About a third of the vacancies are considered by the court system’s administrative agency to be “judicial emergencies” either because of how long they’ve been left open or because the affected courthouses are so busy.


The Eastern District of California is missing two of its six judges, and the remaining four on the bench are inundated with cases. The average judge nationwide handled 571 cases last year, but in this California court the judges are dealing with more than twice that number.

In Texas, a state where immigration cases dominate the docket, there are eight vacancies — two in the appellate courts and six in district courts. Most of the vacancies have been deemed judicial emergencies because of the high case loads and the time they’ve been vacant.

Courthouses in the home states of the two most powerful men in the Senate — Majority Leader Harry Reid, a Democrat from Nevada, and Minority Leader Mitch McConnell, a Republican from Kentucky — also have high vacancy rates.

The three branches of government are supposed to be equal. But because the executive branch — which nominates judges — has been unable to reconcile with the legislative branch — which approves nominees — the judicial branch is left in the lurch.

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.

In July 2011, the Environmental Protection Agency issued regulations to address air pollution that crosses state lines, using powers granted to the agency under the Clean Air Act.

The new regulations would have required states to reduce power plant emissions and prevent the pollution from crossing into neighboring states. It was as part of a so-called transport rule, which the EPA estimated would annually prevent between 13,000 and 34,000 premature deaths; 19,000 hospital and emergency room visits; and 1.8 million days of missed school or work.

But a power company that runs a coal-burning power station in Homer City, Pa., sued the EPA in the D.C. District Court and said it was overstepping its authority.

A three-judge panel was assigned per the random system, and arguments were given on both sides.

In August 2012, the court sided with the power company in a 2-to-1 ruling. The two judges ruling against the EPA were appointed by President George W. Bush. The one dissenting judge was appointed by President Clinton.

“The sense after, and it lingers today, is that the ruling was so devastating that the Clean Air Act control program in question has been stripped of all real meaning,” said John D. Walke, who is the clean air director for the Natural Resources Defense Council, which signed onto the case with the EPA. “It was that dramatic in depriving the Clean Air Act of any vitality.”

In 2011, the FDA passed new regulations requiring cigarette companies to display nine different graphic images on their packages. One included a cadaver with chest staples, another black lungs of a longtime smoker.

Some of the country’s top tobacco companies, including RJ Reynolds, sued the FDA, saying they overstepped their authority. It went beyond providing consumers with factual information about their product, they argued, and instead turned their packaging into a billboard for the government’s antismoking campaign.

In 2012, when the case got to the D.C. Circuit Court, three judges were assigned to the panel. Two were appointed by Republican presidents, one was appointed by a Democratic president. The two GOP appointees ruled against the FDA, while the Democratic appointee ruled in favor.

The government lost the case, and has been considering an appeal.

In January, the court ruled on a case involving the National Labor Relations Board, and whether its decisions could be invalidated because some of its members were appointed by Obama when the Senate wasn’t in session.

The NLRB had ruled that Noel Canning, a Pepsi bottling company from Yakima, Wash., had violated labor laws, including executing a collective-bargaining agreement that had been reached with the union. The bottling company sued, saying the decision was invalid because three of the five members of the board were so-called recess appointments.

It was a highly-watched case, because it could have a cascading effect on hundreds of other appointments made by Obama. House Speaker John Boehner and McConnell, the Senate minority leader, had attorneys arguing on their behalf, in favor of Canning’s argument.

The D.C. Circuit’s three-judge panel ruled in Noel Canning’s favor, saying Obama’s appointments were unconstitutional. The ruling, which the government is now preparing to appeal, reversed decades of precedent and threw into doubt hundreds of other appointments that Obama has made — as well as decisions that have been implemented by those appointees.

But those who argued the case said the odds were stacked against them even before arguments began.

Because of the ideological complexion of the court, they said, the case was bound to be ruled for Noel Canning. And indeed, all three judges on the case had been appointed by a Republican president.

“Just imagine a bingo wheel,” said Victor Williams, an attorney and a professor at Catholic University of America School of Law, who filed a brief siding with the NLRB. “If you have seven balls to spit out to fill up the three-judge panel instead of 11, there is a real possibility there would have been a more reasoned judge on that panel. It really is a classic example that it does matter if we keep our benches full or not.”

“It is more than just dysfunctional,” he added of the confirmation process. “It genuinely is broken.”

There was no small bit of irony in the decision: Obama made recess appointments because the Senate refused to approve his nominees. And those appointments were ruled invalid by a court where Obama has been unable to get any of his nominees approved.

None of the judges at the D.C. Circuit court returned calls seeking comment for this article.

The root of the problem is a broken nomination system.

Whenever a federal judge retires or dies, it is up to the president to nominate someone to take his or her place. The process historically has been closely coordinated with senators from the home state of the court. The senators often submit the names for nomination, the president then nominates them, and the full Senate vets and votes on them.

But if the president picks someone that a senator opposes, there are several ways for that senator to halt the nomination process, including mounting a filibuster on the Senate floor or speaking out against the nominee to convince colleagues not to confirm the president’s choice. They can also place an anonymous “hold” on a nominee, blocking someone without saying so publicly and without giving any reason for doing so.

There is also an old practice — in place since 1917 — that requires home-state senators to be handed blue pieces of paper in order to register their opinions on a nominee from their state. In some instances, merely not returning that piece of paper halts the nomination process because the Senate Judiciary Committee won’t start hearings until the blue slips are returned.

The blue slips have been increasingly used to block nominees. Reid, for example, has been unable to get his desired nominee confirmed to the Nevada District Court because Senator Dean Heller, a Republican from Nevada, has been withholding his blue slip, citing a position she took that he views as against Second Amendment gun rights.

“The blue slip process has become very problematic,” said Caroline Fredrickson, president of the American Constitution Society, a liberal group that has been advocating for judicial vacancies to be filled. “It’s often not an issue of ideology. It’s just an issue of pure obstruction. It’s an artifact of the senate that in this day of obstruction doesn’t function as it was meant to.”

Non-controversial choices — particularly those in district courts, the first place where most federal cases are heard — have historically passed easily and quickly. What’s changed, judicial observers say, is that even district court nominees are now being held up.

During Obama’s first term, it took an average of 610 days — nearly two years — for a district judge to be confirmed. By comparison, it took an average of 420 days under Bush and 447 days under Clinton, according to a report from the Brookings Institute.

Part of the reason is because Obama had been taking longer than his predecessors to nominate candidates when a vacancy occurs, and advocates for more seats on the bench say he has not made it enough of a priority.

He takes even longer to nominate candidates in states where there are two Republican senators than in states where there are two Democratic senators, or in states with a split delegation, according to the Brookings report. White House officials attribute the delays largely to senators not submitting names of nominees in a timely fashion, and Obama has started naming his choices quicker than he did at the start of his first term.

But it’s also taking much longer for his nominees to get a vote on the Senate floor. Clinton nominees had to wait an average of 30 days for a floor vote, and under Bush it took 54 days. Obama’s nominees are taking 139 days to get a vote, after their confirmation hearings are completed.

“What used to be a sure thing isn’t anymore,” said Russell Wheeler, who tracks judicial nominations at the Brookings Institution. “It used to be a ministerial act. Now it’s turned into something else.”

The reasons are both real and petty. Sometimes senators block a nominee because they oppose that person’s judicial philosophy, or simply prefer someone else. Other times, they do it to gain leverage over the White House on an entirely unrelated matter. In one instance last year, Senator David Vitter, a Republican from Louisiana, blocked a nominee in his home state for several months in the hopes that Republican nominee Mitt Romney would win the presidential race — and nominate someone more conservative.

In Oklahoma, for example, a vacancy opened in the 10th US Circuit Court of Appeals in July 2010. The White House proposed several different candidates, all of whom were rejected by the state’s senior senator, Tom Coburn. Eventually, Coburn gave the White House counsel a resume for Robert Bacharach, a district court judge in Oklahoma. Obama nominated Bacharach in January 2012.

But three months later, the Oklahoman newspaper reported that Coburn was withholding the blue slip required of home-state senators, in effect delaying confirmation hearings on Bacharach. After Coburn dropped his objections, Senate Republicans filibustered the nomination in July, saying it was too close to a presidential election.

“Even when we have a nominee for a circuit court that came from a Republican senator that was reported unanimously, it has taken almost a year to get that person confirmed,” said Ruemmler, the White House counsel.

Last month, when Bacharach eventually made it to the Senate floor for a vote, more than a year after he had been nominated, he was confirmed, 93 to 0.

The system has become so bogged down that Supreme Court justices — regardless of whether their appointment came from a Democrat or Republican — have urged the Senate and the White House to fix it.

John Roberts, the Supreme Court’s chief justice, had his own nomination to the D.C. Court of Appeals in 2001 delayed for two years because of partisan opposition. He then left that seat in 2005 after being nominated by then-President George W. Bush to the Supreme Court and it remains vacant. He has decried what he has called “a persistent problem has developed in the process of filling judicial vacancies.”

“Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” Roberts said in a 2010 state of the judiciary report. “This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads.”

Supreme Court Justice Ruth Bader Ginsburg was even more blunt.

“I’m hoping there will be members of Congress who will say enough,” she said at a February meeting of Association of Business Trial Lawyers. “We are destroying the United States’ reputation in the world as a beacon of democracy, and we should go back to the way it was, and the way it should be.”

Shutting off the debate

On a recent Wednesday morning, snow coated the Capitol and a quiet Senate chamber slowly began to come to life. Pages stood at doors, ready to open them for senators. A television technician made sure the cameras could capture the speeches, and glasses of water were filled at senators’ desks.

The Senate chaplain rose to offer a prayer. “Inspire our senators this day to use wisely the fragile time they have. . . . Show them your mighty power in these challenging times,” he said softly.

The Senate majority leader, who next took control of the floor, had a different wish.

“I do hope, for the sake of the country, the obstruction of the last two Congresses will vanish,” Reid said.

For the second time in two years, the Senate was planning to vote on Caitlin J. Halligan, who is the general counsel for the Manhattan district attorney’s office and has been Obama’s nominee to fill the vacancy created on the court when John Roberts was elevated to the Supereme Court on Sept. 29, 2005.

After graduating from Georgetown Law School, Halligan was a clerk in the D.C. Circuit, for Judge Patricia Wald, and then for Supreme Court Justice Stephen Breyer. The American Bar Association gave her its highest rating of “well qualified.”

Obama first nominated Halligan in 2010, but the Senate never voted on her. He nominated her again in 2011, but 11 months later Republicans filibustered her nomination on the Senate floor. He nominated her in 2012, and again in January.

On that Wednesday morning, it had become clear that Republicans were planning to filibuster the vote. They not only wanted to vote against her, they didn’t want to allow a vote on her nomination to take place at all. To confirm her would take 50 votes, but to shut off debate first would take 60 votes.

Senate Majority Whip Dick Durbin, who has been in the Senate for 16 years, said the Republican arguments were “as empty as any argument I have heard on the floor of the Senate.”

“It’s embarrassing,” he said. “It’s troubling.”

McConnell went through a litany of problems he had with her as a nominee. He criticized “her zeal for these frivolous lawsuits” and called her a “textbook example of judicial activism.”

“Giving her a lifetime appointment,” McConnell said, “is a bridge too far.”

As Senator Chuck Schumer, Democrat of New York, rose to speak, McConnell began to leave the room.

“There ought to be more comity,” he added. “This is nothing about Ms. Halligan, but it is about keeping the D.C. Circuit vacant and not allowing our President to rightfully fill those vacancies.”

“We are going to bring nominee after nominee after nominee up to fill that D.C. Circuit,” he vowed, in a room where he was the only senator in the chamber. “Are they going to continue to filibuster every nominee and find some trivial excuse to filibuster him or her? Because that is what is going to happen.”

After about an hour of debate, a vote was called. Senators streamed in, standing together in small groups with members of their own party. They chatted, laughed, and compared ties with one another. They patted one another on the back and they laughed at each other’s jokes.

The 60-vote threshold to shut off debate failed, 51-to-41. Only one Republican — Lisa Murkowski, of Alaska — joined 50 Democrats in trying to move forward to a vote. Eight senators — four from each party — didn’t cast a vote.

After it failed, they slowly filed out from the chamber.

Democrats say that Republicans are stretching the limits of an agreement that emerged from the so-called “Gang of 14,” a bipartisan group of senators that formed in 2005 to forge compromise after a series of Democratic filibusters of Republican judicial nominees. Under that agreement, fillibusters would end in “all but extraordinary circumstances.”

Republicans believe Halligan falls in that category; Democrats disagree.

But for Republicans last week, there was some solice in revenge. Ten years earlier to the day, they noted, Democrats had filibustered one of President George W. Bush’s nominees to the same court. Democrats had criticized attorney Miguel Estrada for being too inexperienced, for being too conservative, and for being on the legal team that represented Bush in Bush v. Gore.

Like Halligan, Estrada was deemed “well qualified” by the American Bar Association. Among those who had led the charge against Estrada were many of the same senators leading the charge for Halligan: Schumer, Reid, Durbin.

Democrats had also never acted on Peter Keisler, an attorney whom President George W. Bush nominated several times to replace Roberts once he left for the Superme Court.

“It’s just a shame her nomination failed because of the pathetic politics of Washington,” Senator Kirsten Gillibrand, a New York Democrat, said of Halligan on her way out.

With the Senate’s failure to vote, the status quo remained intact. Four seats continue to remain vacant at the D.C. Circuit Court, and President Obama once again had failed to put a nominee, and his imprint, on this critical court.

Matt Viser can be reached at maviser@globe.com.