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The Urgent Need to Fill The Current D.C. Circuit Vacancies

The U.S. Court of Appeals for the D.C. Circuit has been called the nation’s “second most important court” because it resolves myriad appeals from federal administrative agency determinations that affect separation of powers, national security, and health, safety, and welfare.  When President Obama assumed office, the tribunal was already experiencing vacancies in two of its eleven judgeships.  Now, it has three openings, as the result of Judge Douglas Ginsburg’s October 14 assumption of senior status. Yet, nearly three years after Obama’s election, the President has appointed no one.  It is past time that Obama nominate, and the Senate confirm, superior nominees for those vacancies.

Why the D.C. Circuit Vacancies Are Especially Important—and Why They Become Enmeshed in Politics

The Supreme Court hears few appeals, which means that the D.C. Circuit is the court of last resort for 99 percent of D.C. District Court appeals—many of which challenge nationwide agency actions, such as western public lands use decisions, and the numerous direct appeals from agency determinations involving energy, labor and communications law.

However, the D.C. Circuit’s very importance may explain why its openings tend to be prolonged.  Republican and Democratic presidents alike have often plucked Supreme Court nominees from the D.C. Circuit.  On the current Supreme Court, four Justices—Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg previously served on the D.C. Circuit.  This phenomenon has led whichever party is not occupying the White House at a given time to scrutinize and even obstruct D.C. Circuit nominees whose perspectives they oppose, lest those nominees be confirmed for the tribunal and later receive a Supreme Court nomination.  For instance, this may well have been the reason why the Senate did not approve John Roberts for a judgeship on the D.C. Circuit when President George H. W. Bush nominated him, and also the reason why the Senate analogously treated President Bill Clinton’s nomination of Elena Kagan.

Why Has President Obama Named So Few D.C. Circuit Nominees?

There are several reasons why we’ve seen President Obama name so few nominees to the D.C. Circuit.  Most importantly, he has been addressing intractable problems that earlier administrations bequeathed to him, especially two wars, Guantanamo, and the debilitating recession.

Moreover, the Obama Administration experienced difficulties instituting a new government.  Some upper echelon Justice Department posts lacked Obama appointees until last year.  When Obama addressed court vacancies, he focused upon two Supreme Court openings and upon tribunals having emergencies because they were so short-staffed.  For example, the U.S. Court of Appeals for the Fourth Circuit encountered five openings and the U.S. Court of Appeals for the Second Circuit, four, so Obama stressed those vacancies, and enjoyed success; each now has only one vacancy.

Obama and the Senate should swiftly fill the D.C. Circuit openings.  The quantity, complexity and importance of the D.C. Circuit’s appeals mean that the court requires all eleven judgeships to be filled, if it is to promptly, economically and fairly decide cases.  The President should consult Eleanor Holmes Norton (D-D.C.) for suggestions as to whom to nominate, as many D.C. judges, lawyers and professors possess the necessary intelligence, diligence, independence, ethics, balanced temperament and constitutional, administrative, legislative, and national security law expertise.  Nonetheless, the D.C. Circuit is a national court, so Obama should also go beyond D.C. to ensure he is considering the most qualified candidates in the entire country.

The President did nominate Caitlin Halligan, the general counsel for the Manhattan District Attorney, to the D.C. Circuit one year ago, but that nomination has been awaiting a Senate floor vote since this March.

Now, President Obama should promptly select two more outstanding D.C. Circuit nominees, while the Senate should expeditiously confirm them and also Halligan.  The nation’s second most important tribunal needs all its members present to deliver justice.

Carl TobiasCarl Tobias, the Williams Professor at the University of Richmond School of Law, has written extensively on federal courts issues.
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3 Responses to The Urgent Need to Fill The Current D.C. Circuit Vacancies

  1. Shannon Jacobs says:

    So amusing. Remember how the Founders thought lifetime appointment would protect the justices from the influence of politics? Remember how the politicians realized that the youngest possible judicial appointees would propagate their political policies?

    Why don’t you do something useful, like publish the statistics on the ages of the judges as a function of the political party of the president who appointed them?

  2. Rich says:

    W Bush was permitted to make 4 appts. to the DC Circuit during his term and 3 of them were highly controversial nominees (Janice Brown, Brett Cavanaugh, Thomas Griffith)..

    Why the Democratic senate leadership has not fought to get Ms. Halligan confirmed and why President Obama has not put forth nominations for the other DC Circuit openings baffles me to no end…Makes, no. sense.

  3. Guest says:

    Prof. Tobias, any rumors on when Halligan may get a floor vote? Sounds like the GOP has had trouble finding any real substantive reasons to vote against her, aside from some memo on gun control that she did not even author.  Her being a potential candidate for a future SCOTUS opening obviously seems to be the main reason for her not getting a vote yet—perhaps retribution for Miguel Estrada not getting a vote.

    Ed Whelan reported Debo Adegbile from NAACP LDF is being considered.  At this point, though, any new nominee is going to have a slim chance of getting a vote before next year’s election.   If Obama wins a second term, however, I would expect him to try and fill the farm system for future SCOTUS seats—in other words, relatively young, highly accomplished lawyers and judges.   David Frederick and Neal Katyal seem like possible nominees for the DC Circuit, as both supported Obama during his first campaign and both have the type of background one would expect for the DC Circuit.  Also, Sri Srinivasan or Pamela Harris from DOJ would not be a big surprise. Leondra Kruger is probably too young, but might be considered towards then end of a second Obama term.

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