The U.S. Supreme Court is unusual among courts in that it has the right—a right that it avails itself of quite frequently—to simply not hear appeals. That means that for many purposes the federal circuit courts are the end point for litigation, and in an American political system that gives judges a great deal of authority over public policy that makes them very important. And no circuit court is more important than the D.C. Circuit, which, due to its strategic location in the District of Columbia, has jurisdiction over tons and tons of dull-but-consequential regulatory lawsuits.
This week the Obama administration joined a high-stakes political battle over the court whose very existence is so dumb that it’s hard to write about without rolling my eyes.
But here goes. The president of the United States has thrown down the gauntlet to his political enemies by … designating nominees to fill vacancies on the court that have lingered since his first inauguration.
That’s it. That’s the controversy. The controversy is over whether the judicial nominees of a duly elected president of the United States should receive confirmation votes on the floor of the U.S. Senate or if instead there should be a rule that vacancies can only be filled by Republican Party presidents. There are no interesting arguments on the merits to be had about this subject (and yes that was my position in 2005; and yes Slate had good pieces on this back in 2005), so there’s really nothing to say. But it’s worth emphasizing the stakes. There are a lot of issues that are superficially under the control of the executive branch regulation-writing process that, in fact, end up in the lap of the D.C. Circuit. The D.C. Circuit has, for example, undermined the Department of Education’s efforts to regulate what publicly subsidized for-profit colleges may do while remaining eligible for public subsidies. The D.C. Circuit has undermined several regulations issued under the Dodd-Frank financial reform bill and the threat of future judicial veto weighs on the minds of regulators as they consider new rules.
Last and most consequently, the shadow of EPA regulation of existing sources of climate pollution hangs over the entirety of Obama’s second term. The Clean Air Act is a potentially powerful tool on this issue, but the D.C. Circuit is a powerful tool for undermining anything the EPA does in this regard.
Note that precisely because the stakes are high here the chance of Obama succeeding is approximately zero. Even when corporate America is largely favorable to compromise the GOP faces a strong impulse in favor of obstruction. But the significance of the D.C. Circuit as an economic regulator means that business should be strongly in favor of obstruction, and social conservatives will also be strongly in favor of obstruction. What’s more, nobody in the electorate knows what a circuit court judge is or cares about federal appellate litigation. So the entire issue ultimately comes down to whether Democrats will force the issue and alter the Senate rules to force floor votes. Democrats have controlled the Senate consistently since January of 2007 and have been consistently stymied by constant filibustering since January of 2007 and have been consistently reluctant to do anything about it since January of 2007. Maybe this time it’s different, but so far I haven’t seen the evidence.