How new Senate filibuster rule could change balance of power on courts

There are 18 vacancies on federal appeals courts nationwide, but perhaps most significantly, the new Senate filibuster rule allows Obama and Democrats to fill three seats on the D.C. Circuit, the nation's second most powerful court.

US Senate action Thursday jettisoning the rule that allowed filibusters to block nominations to federal judgeships will pay immediate dividends for the White House and Democrats seeking to reshape the balance of power on the federal courts.

Appointees to the federal bench – particularly to the US Supreme Court and federal appeals courts – are often cited as among the most significant and lasting features of a president’s legacy.

Thursday’s rule change opens the door wide for Democrats to now move quickly to fill 18 vacant positions among appeals court judges nationwide and 75 vacant posts in the district courts. (The rule change does not apply to Supreme Court nominations, and there are no current vacancies.)

Within moments of changing the rule to allow confirmation by majority vote, the Senate voted to end the block on Patricia Millett, a Washington appellate lawyer, who was nominated to a vacant seat on the Washington-based US Court of Appeals for the District of Columbia Circuit.

That court is known as the nation’s second most powerful after the US Supreme Court. Its location in Washington means it fields a high number of major legal disputes involving government power, civil rights, voting rights, and regulatory authority.

All of these areas are critical to the success of President Obama’s second-term agenda.

As of Thursday, there are eight active judges on the D.C. appeals court with three seats vacant. The judges are split 4 to 4 among Democratic and Republican appointees. Ms. Millett’s arrival at the appeals court would break that tie in favor of Democratic appointees.

In addition, the president has nominated candidates for the two other vacant positions, Georgetown Law Professor Cornelia Pillard, and Robert Wilkins, a federal judge in Washington. With the Senate’s new majority vote rule, both are expected to win easy confirmation.

Once they join the appeals court the split among Democratic and Republican appointees will be 7 to 4, among the court’s active judges.

Although the composition of the court based on the party affiliation of the nominating president doesn’t guarantee success in any given case, it can’t hurt to have judges who share an administration’s perspective on key issues, legal analysts say.

Within the past year the D.C. Circuit has handed significant defeats to the Obama administration, ruling that the president violated the Constitution when he made recess appointments to the National Labor Relations Board. (That case is set for argument at the Supreme Court on Jan. 13.)

On Nov. 1, the D.C. Circuit again handed the administration a major defeat when it ruled in favor of a corporation challenging the so-called contraception mandate in the Affordable Care Act, the president’s embattled health-care reform law.

The appeals court said the owners of the company could challenge the ACA’s contraception mandate as a violation of their religious rights. Government lawyers had argued that for-profit corporations do not have any religious rights. (Three cases raising the same issue have been appealed to the Supreme Court. The court will consider whether to hear those cases during a private conference next week.)

In addition to its strategic location, the D.C. Circuit is also viewed as a training ground for potential Supreme Court nominees. For example, if confirmed, Millett will be filling the seat left vacant in 2005 when then Judge John Roberts was tapped by President Bush for a promotion. He is now chief justice of the United States.

Senate battles over who should win confirmation to the Supreme Court are as old as the nation. But the increasing ferocity of battles over appeals court and even some district court nominees is relatively new.

Democrats complain that Republicans in the Senate have resorted to unprecedented levels of obstructionism to block Obama judicial nominees. Until Thursday’s rule change, the Republicans had blocked five nominees. Now the list is likely to drop to two.

The two blocked nominees are Goodwin Liu, the former dean of University of California at Berkeley School of Law, and former New York Solicitor General Caitlin Halligan.

Both withdrew their names from consideration after facing open-ended opposition from Republicans. Ms. Halligan is a lawyer in New York. Mr. Liu is serving on the California Supreme Court.

During the Bush administration Senate Democrats blocked 10 of the president’s nominees to federal appeals courts. Five of the nominees were later given a vote and approved as part of a broader compromise. The other five were not confirmed.

In comments from the White House, President Obama acknowledged that neither the Democrats nor the Republicans were blameless in the use of filibuster tactics.

But he said he supports the Senate’s new rule in the face of what he called an unprecedented pattern of obstruction in Washington.

Sen. Chuck Grassley (R) of Iowa had a different perspective on the Senate’s new rule. “This is about a naked power grab, and nothing more,” he said in his floor statement.

The judicial work load at the D.C. Circuit did not justify filling the three slots, he said. The move was more about doing whatever it takes to insulate the administration’s policies from judicial review, the senator said.

Senate Minority Leader Mitch McConnell quoted Democrats as saying that it was critical to staff the D.C. Circuit with Democratic judges.

“The reason is clear,” Senator McConnell said. “As one liberal activist put it earlier this year, President Obama’s agenda ‘runs through the D.C. Circuit.’

“In short, unlike the first two years of the Obama administration, there’s now a legislative check on the president. And the administration doesn’t much like checks and balances. So it wants to circumvent the people’s representatives with an aggressive regulatory agenda, and our Democrat colleagues want to facilitate that by ‘filling up’ a court that will rule on his agenda – a court that doesn’t even have enough work to do,” he said.

McConnell warned that the new rule established an important precedent that Democrats might regret should they lose control of the Senate and the presidency.

“As the Ranking Member of the Judiciary Committee put it yesterday: ‘If [the Majority Leader] changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court,’ ” McConnell said.