Democrats obscuring judicial facts: Column

Carrie Severino | USATODAY

President Obama has named three nominees to the U.S. Court of Appeals for the District of Columbia Circuit, the nation's second most important federal court. The decision has captured attention because the court issues some of the most significant cases, including many involving the constitutional validity of actions taken by the president and federal agencies. That role has recently subjected the court to intense criticism from Democrats, who are angry that the court (now balanced 4-4) has been enforcing constitutional limits on President Obama's agenda.

In August, the court struck down an unlawful EPA regulation that would have forced energy companies to lay off workers and increase electricity costs. More recently, the court ruled that President Obama's attempt to circumvent the U.S. Senate with his appointments to the National Labor Relations Board "eviscerate[d] the Constitution's separation of powers" and "demolish[ed] checks and balances." Unhappy with these rulings, Democrats are now angling to fill the D.C. Circuit with ideological cronies if that is what it takes to rubber-stamp President Obama's agenda.

As Constitutional Accountability Center President Doug Kendall put it: "With legislative priorities gridlocked in Congress, the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit." At a recent Democratic Party gathering, New York Sen. Chuck Schumer recounted the major cases the Obama administration had lost in the D.C. Circuit, and echoed the importance of nominating more liberal judges to the court: "We will fill up the D.C. Circuit one way or another," he promised.

The thing is, virtually everyone agrees that the D.C. Circuit -- with the lowest number of appeals filed annually -- does not need more judges because it is already significantly under-worked. According to legal expert Ed Whelan, the D.C. Circuit's total pending appeals dropped around 10% since 2005, falling from 1,463 to 1,315 from September 2005 to September 2012, while pending appeals per active judge increased by only one case. The Circuit's judges, including the contributions of senior judges, now have around two-thirds the workload of their colleagues in 1995-96.

Senate Democrats once agreed. In 2006, every Democratic Senate Judiciary Committee member, including Sen. Schumer and then-Sen. Joe Biden, wrote a letter opposing the nomination of Peter Keisler because the court was underworked. Keisler waited 900 days for a vote that never came. Miguel Estrada, another D.C. Circuit nominee, was filibustered seven times by Senate Democrats because, as Illinois Sen. Dick Durbin's office put it, he "has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment."

Now that they are having trouble ramming their agenda through the court, Democrats have shifted strategy. They know that putting liberal judges on the D.C. Circuit will face opposition, so they are conditioning the environment to label Republicans as obstructionists. And liberal media outlets are helping all they can. Despite running more than 10 editorials from 2003-2006 defending the filibuster and fighting Republican-proposed reform to federal judicial selection, the New York Times editorial board is suddenly arguing that Republicans are "creating a serious shortage of judges and undermining the ability of the nation's court system to bestow justice." But the allegations don't stand up.

From 2011 to 2013 (the 112th Congress),the Senate confirmed more judges than any Congress in 20 years. So far this year, the U.S. Senate has already confirmed 22 of President Obama's judicial nominees. At this point during President Bush's term in 2005, the Senate had only confirmed five judicial nominees. All in all, the vast majority of President Obama's nominees have been confirmed. As of late May, the Senate had confirmed 193 lower court nominees and blocked only two. As the Senate Judiciary Committee's ranking member, Iowa Sen. Charles Grassley, put it: "Who can complain about achieving 99%?"

President Obama's appellate nominees are also being confirmed faster than George W. Bush's. According to a Brookings Institution study, President Bush's circuit nominees waited an average of 283 days for confirmation, while President Obama's have waited 240 days. Although almost 70% of federal vacancies (55 of 79), including 75% of "judicial emergencies" (24 of 32), have no nominee, last I checked, the president has the power to nominate judges, not the Senate's minority party.

Democrats would rather obscure these facts because they expose their effort to shift the D.C. Circuit court for what it is: a blatant attempt to turn one of the nation's most prestigious courts into a rubber stamp for an agenda that is otherwise too extreme to survive our system of checks and balances.

Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. She was previously a law clerk on the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court.

In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.