Political Animal


April 11, 2013 10:49 AM Working the Refs By Taking Them Off the Court

By Ed Kilgore

Might as well go for a negativity Trifecta this morning: another bad sign of the underlying partisan atmosphere in Washington involves this underreported development, via Think Progress’ Ian Millhiser. Here’s a relatively innocuous-sounding statement by the Senate Judiciary Committee’s ranking Republican, Chuck Grassley, during confirmation hearings for D.C. Circuit nominee Sri Srinivasan:

[T]oday I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.
This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.
If adopted, this legislation would be a significant step towards rectifying the extreme disparities between the D.C. Circuit and the Second and Eleventh circuits.

Yeah, right. What it would actually accomplish, as Millhiser explains, is to prevent Obama from reversing a conservative majority on the D.C. Circuit, an enormously powerful judicial panel when it comes to a vast array of regulatory issues:

[T]he United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Looks like Grassley—or whatever Federalism Society alum who is advising him—understands that the regulatory and legal arenas are where the actual policy legacy of the Obama administration will be determined, often by split decisions in the D.C. Circuit or its “graduate school,” the U.S. Supreme Court (four current Justices first served on the D.C. Circuit). The Iowan was not among the Republican senators eating steak with the president last night. That’s too bad: questioning his court-tampering initiative might have provided some stimulating dinner conversation.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • gandalf on April 11, 2013 11:06 AM:

    And is there a single living human being that thinks this legislation is going to pass? It's tim eto start a score card for every senator and congress critter who starts and votes for legislation that has zero chance of passing.
    If any of these people worked for someone anywhere and told their employer "hey I'm going to spend time working on this project that I know isn't going to get finished ever" he or she would be summarily fired on the spot.

  • c u n d gulag on April 11, 2013 11:08 AM:

    Too bad he didn't go to the steak dinner last night, and choke on a piece of one.

    I wonder if applying the heel of your shoe to his neck could be considered a variant of The Heimlich Maneuver?

    "Oh, squeeze his midsection, NOT step on his neck? Jeez, I didn't know that!"

    'Hatch Sessions - Flake and Cruz!' sounds like as good a description of this maloderous idea as any.

  • Ted Frier on April 11, 2013 11:41 AM:

    I don't think we've seen this level of overt partisan meddling with the court's since Thomas Jefferson repealed the Judiciary Act that was passed during Federalist rule. The Judicary Act expanded the number of federal courts and judgeships, which Jefferson's Republican Party considered to be the last redoubt of declining elitist Federalist rule.

    But at least Jefferson had the good manners to tinker with the courts after he and his Republican Party had won a national mandate in the famous election of 1800. Grasley's rearguard Court "Efficiency" Act, on the other hand, tries to lock in Republican domination of the circuit court as a reward to Republicans for having been overwhelmingly REPUDIATED by the American people in the most recent election instead.

  • sjw on April 11, 2013 11:43 AM:

    Republicans are patiently trying to engineer a slow motion coup d'état. Instead of politeness, Obama needs to respond with firmness; instead of more leading from behind, he should be proactive. "Needs to" and "should be": but I'm not holding my breath ...

  • kindness on April 11, 2013 12:05 PM:

    Guillotine yet?

  • Napoleon on April 11, 2013 12:07 PM:

    My best recollection is that when Clinton was president they ran the same over all scam. Orin Hatch, the judiciary chair, held up Clinton's nominations on this basis, which suddenly reversed the second Bush became president. This legislation was not introduced to pass, but to provide the bogus rational to hold up nominations.

  • mk3872 on April 11, 2013 12:07 PM:

    Conservatives have completely outmaneuvered Liberals with their strategy of manipulating the courts with "movement" judges.

    And Repubs have also deftly out-maneuvered Dems since Reid took over the Senate in 2006 by using the filibuster whenever necessary.

    Complain all you want to about Republicans. They have 100x the guile, tenacity and fight than their Dem counterparts.

  • bdop4 on April 11, 2013 1:13 PM:

    Agree that this has no chance of passage, but I gotta concur with mk3872: WTF is wrong with the Democratic Party? Why can't they have faith in their own policy prescriptions?