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And Then There Were Seven

February 7, 2013

On February 12, 2013, Chief Judge David Sentelle of the United States Court of Appeals for the District of Columbia Circuit (infamous of late for his stunningly sweeping ruling that essentially reads the Recess Appointments Clause out of the U.S. Constitution) will take senior status, bringing to four the number of vacant seats on what is widely regarded as the second most important court in the country.  On a court with 11 authorized judgeships, that will leave only seven active judges to do the nationally important work of this court, work that includes cases involving national security, environmental protection, employment discrimination, food and drug safety, and much, much more.   

Not to put too fine a point on it, but this situation is a travesty.  One of the open seats on the D.C. Circuit has been vacant since September 2005 – yes, 2005, that’s not a typo – when then-Judge John Roberts was elevated to the Supreme Court.  Two other seats have been vacant since 2008 and 2011.   Midway through his first term, President Obama nominated former New York Solicitor General Caitlin Halligan to fill the first vacancy, what was then the 10th seat on the court (and became the 9th seat in 2011, with the third vacancy and will become the 8th seat when Chief Judge Sentelle retires).  Although Halligan has a stellar record and is superbly qualified, her nomination was opposed by conservatives who claimed the D.C. Circuit’s workload did not justify filling the vacancy.  I’ve previously refuted this bogus and hypocritical argument and it gets even weaker when we are talking about filling the 8th seat.  During the George W. Bush Administration, Senate conservatives had no problem filling the 11th seat on the D.C. Circuit, and the 10th seat – twice -- although the court’s workload was not significantly different than it is now.  Perhaps realizing the hypocrisy of their numbers argument, Senate conservatives also claimed to oppose Halligan because, as a lawyer for the State of New York, she had the temerity to represent her client in a lawsuit against gun manufacturers, a lawsuit directed by her boss, the New York State Attorney General.   Frankly, and as the New York Times’ Linda Greenhouse has pointed out, if Senate conservatives were being honest about it, they would simply say that they are opposed to allowing President Obama to put anyone on the D.C. Circuit, period.  But that cannot be the final answer.

Thanks to conservative obstruction, Halligan’s nomination went nowhere during the 112th Congress – torpedoed by a filibuster.  Meanwhile, in 2012, President Obama nominated Principal Deputy Solicitor General Sri Srinivasan to fill the second vacancy on the D.C. Circuit.  Srinivasan didn’t even get a hearing in the Judiciary Committee last year.  There’s been no nominee for the third vacancy on the court, and none for the soon-to-be-vacant Sentelle seat, either.  Thus, on February 12, nearly 40% of the active judgeships on the D.C. Circuit will be vacant.

With the 113th Congress underway, the President has re-nominated Halligan and Srinivasan.  That’s a great start to the new year.  What’s also needed now – and promptly – is for the President to nominate well-qualified candidates for the two other vacancies on the D.C. Circuit, and to make it clear to the Senate that he intends to see the vacancies on this critical court filled.   Senate Democrats also need to make filling the D.C. Circuit vacancies a priority, and the President’s political opponents need to understand that elections matter.

Perhaps more than any other appellate court in the country, the D.C. Circuit does the Nation’s business.  And the people of this Nation can no longer afford to see vacancy signs hanging off multiple seats on the D.C. Circuit bench.