Senate fights over appeals court key to Obama agenda

Richard Wolf | USA TODAY

WASHINGTON — The U.S. Senate declared a political "nuclear" war Thursday over a federal court and three nominees to it that few Americans have heard of.

Yet the U.S. Court of Appeals for the District of Columbia Circuit — and President Obama's effort to get at least Supreme Court super-litigator Patricia Millett confirmed to it — may be more important to his record and legacy than anything but Obamacare.

That's because the little-known appeals court has vast jurisdiction over the federal government's powerful bureaucracy — its myriad departments and agencies, and the thousands of regulations and executive actions that get churned out without much fanfare.

It's that court that in January struck down Obama's "recess appointments" to an even more obscure government body — the National Labor Relations Board — triggering an upcoming Supreme Court showdown over presidential powers.

It's that court that could advance or reject much of Obama's legislative and regulatory agenda for the duration of his term, from financial regulation to climate change.

And it's that court that could provide the springboard for future Supreme Court justices — perhaps Sri Srinivasan, the only judge that Senate Republicans have confirmed among Obama's five nominees.

After all, the D.C. Circuit once was home to Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas. Justice Elena Kagan would have served there had Republicans not blocked her nomination.

The rules change approved by Senate Democrats Thursday will make it easier to confirm nominees to federal district and appeals courts; however, it won't change Republicans' ability to filibuster Supreme Court nominations with 41 of 100 votes.

That could signal trouble for Obama if a vacancy develops on the high court during the remaining three-plus years of his presidency -- something that is likely, since four of the nine justices are between 75 and 80 years old.

In general, the rules change also could work against Democrats under future Republican presidents and Senates. "The silver lining is that there will come a day when the roles are reversed," said Sen. Chuck Grassley, R-Iowa., top Republican on the Senate Judiciary Committee.

The change will affect all district and circuit courts, however -- the two lower levels of the federal court system in which Obama has faced longer delays before confirmations than any of his recent predecessors. The typical Obama nominee waits more than seven months to get through the Senate. Fourteen are awaiting confirmation now.

For more than a quarter-century, the D.C. appeals court has been at the center of frequent Senate battles over judicial nominees. Democrats blocked President George W. Bush's nominations of Miguel Estrada and Peter Keisler.

Republicans have blocked Obama's nominations of New York prosecutor Caitlin Halligan, Georgetown law professor Nina Pillard, U.S. District Court Judge Robert Wilkins and Millett, who has argued the second-most cases at the Supreme Court among all women.

Beyond the court's jurisdictional clout, two issues dominate the debate over the appeals court.

One is politics. After the 97-0 confirmation of Srinivasan, a former chief deputy solicitor general with bipartisan credentials, the court has four full-time judges nominated by Republicans and four by Democrats. Republicans still have an edge because five of six "senior" judges working part-time are GOP nominees.

Senate Majority Leader Harry Reid — who led Thursday's "nuclear option" battle to change Senate rules so Republicans no longer could block most nominees by filibuster — made his goal clear back in August: "We're focusing very intently on the D.C. Circuit," he said. "There's three vacancies, we need at least one more, and that will switch the majority."

The other issue is workload. Republicans claim the 11-seat court doesn't need more than eight full-time judges, based on the number of active cases pending. Democrats argue that the cases are more complex than those faced by the nation's 11 regional appeals courts.

Senate Republican leader Mitch McConnell said Obama's goal is "filling up a court that will rule on his agenda, a court that doesn't even have enough work to do."