How to Undo the Obama Presidency by Blocking Judges

President Barack Obama walks toward the White House on March 23, 2012 in Washington, DC after returning from his travel to the Middle East.

Photo by Aude Guerrucci-Pool/Getty Images

The news broke late on Friday, and it didn’t even come up on the Sunday shows. Caitlin Halligan, the former New York solicitor general, withdrew as a nominee for the U.S. Court of Appeals for the District of Columbia Circuit. The casus belli for a Republican filibuster was Halligan’s work for New York on a gun rights case. The NRA opposed her; the NRA usually gets what it wants in cases like these.

The result, this time, saved one of the beachheads of conservative/libertarian resistence to Obama. No judge has been confirmed to the court since Barack Obama took office. That’s left the court with four vacancies, four Republican-appointed judges, and three Democrat-appointed judges, and that’s boosted conservative odds of blocking Obama’s executive moves. It was a D.C. circuit panel that ruled against Obama’s recess appointments to the NLRB. Republicans have cited that decision to call Obama’s nominees “unconstitutional,” and pre-announce that they’d filibuster any nominee to lead the CFPB. It’s helped in other ways, which are named in this very good Haley Edwards piece about the lobbying that’s blocking Dodd-Frank.

In September 2012, the U.S. Court for the District of Columbia Circuit overturned the CFTC’s rule. In the decision, the court wrote that the commission lacked a “clear and unambiguous mandate” to set position limits without first demonstrating that they were necessary and appropriate. And with that, more than two years after the passage of Dodd-Frank, there were still no federally administered position limits for any commodities except grain, and the CFTC was back to square one.

For years, Democrats tried to keep the D.C. circuit skewed by blocking Bush nominees. They made one compromise: Allowing Janice Rogers Brown to evade a filibuster and make it on the court. Republicans have returned that favor with filibusters and a status quo that favors them.