Hi everyone. Sorry for the radio silence on this. Got caught up at work, and the downturn in the polls has had me quite depressed. I deal with depression anyway and things like this only make it worse. It isn’t easy to think about matters like the courts knowing what a great opportunity we seem apt to squander, and how miserable it’s going to make our lives for decades. What Trump could do at this point to alienate enough people (and actually cause them to vote for Clinton) beats me, but I’m hopeful the debate will help matters (hoping the next polls are good for Clinton and that this time she doesn’t relinquish her lead). Either way, this subject is important, and I know some people are interested, so here it goes.
What do Ruth Bader Ginsburg, John Roberts, Antonin Scalia, Clarence Thomas, Robert Bork, Ken Starr, and Warren Burger have in common?
They all were once judges on the DC Circuit Court of Appeals. This is called our country’s second-highest court for good reasons, as we shall explore in part 3 of our 13-part series, Better Know a Circuit. Part 1 explored the 4th Circuit, which Obama dramatically transformed, and part 2 explored the 7th Circuit, where his impact was far more limited, but where we will have a great opportunity for transformation (revolution? ;) ) should Clinton win and Duckworth, Feingold, and Bayh all get elected.
Now we go to the nation’s capital, where the DC Circuit hears federal appeals in cases from, naturally, Washington DC. The bulk of cases involving federal regulations originate here, since the agencies are housed mostly in DC. When Guantanamo detainees challenge their detention, they go through this court. When conservatives want to increase the power of big business vis a vis government, they usually use this court. And as if that weren’t enough, the DC Circuit is a breeding ground for future SCOTUS justices and other prominent figures.
All of that combines to make the DC Circuit very powerful and worthy of being considered the nation’s second-highest court. And it makes it a major political battleground. One that conservatives dominated for years, and still get a major say on. Yet for the last few years, this court has stymied their radically reactionary causes. Why? Barack Obama and Harry Reid. And us. Obama appointed 4 judges to this Court. Harry Reid nuked the filibuster to make it happen. And we drove Reid to take that step.
More below the fold.
The Incredible Power of the DC Circuit
What big cases *doesn’t* the DC Circuit handle? Not many. Since DC is the seat of the federal government pretty much any case involving federal agencies/regulations and such goes to the DC Circuit. A few cases that have been to the DC Circuit in the past decade include:
Rasul v Bush, the 2004 case where Guantanamo detainees tried to challenge their detentions in federal court, and Bush argued the courts had no jurisdiction over Guantanamo. The DC Circuit agreed with Bush in this case, citing the prior SCOTUS rulings of Ahrens v Clark (1948) and Johnson v Eisentrager (1950). Regrettably, one of the judges who ruled for Bush was Merrick Garland—though in fairness, Garland was bound to consider these precedents. Unlike Scalia, Garland takes the judicial role seriously and respects stare decisis.
SCOTUS, fortunately, reversed the DC Circuit 6-3, with John Paul Stevens writing. Stevens has an interesting history with this sort of case—he clerked for Justice Wiley Rutledge, who dissented in Ahrens v Clark. Stevens helped Rutledge draft the dissent in that case. Undoubtedly he remembered this while writing the decision in Rasul, 56 years later. Stevens argued that an obscure 1973 ruling, Braden v. 30th Judicial Circuit Court of Kentucky , undercut the logic in Ahrens and Eisentrager. He goes into more detail about all this in Five Chiefs, well worth the read.
Hamdan v Rumsfeld, 2006. Another Guantanamo case, this one challenging the military commissions concocted by the Bush administration to try the detainees, on the grounds that they violated US law and the Geneva Conventions. The DC Circuit was dominated by conservative Republicans then, and the 3-judge panel ruled for Bush. The judges were: Raymond Randolph (GHW Bush), Stephen Williams (Reagan), and John Roberts (GW Bush). Four days after the ruling, GW Bush nominated Roberts to SCOTUS. Funny timing.
Once again, the saner SCOTUS judges reversed, 5-3, with Roberts recused for obvious reasons. Writing again was Stevens. The decision, striking down the commissions, led Bush and Congress to concoct a new plan. Hence, the Military Commissions Act, which essentially re-authorized exactly what SCOTUS had struck down, and stripped the courts of jurisdiction to hear habeas corpus challenges from detainees. Which gave rise to….
Boumediene v Bush, 2008. A challenge to the indefinite detention itself, and the Military Commissions Act. Once again, the DC Circuit ruled in favor of Bush. Once again, SCOTUS reversed, in a 5-4 decision, this one by Kennedy. They declared the habeas corpus suspension unconstitutional and allowed detainees to challenge their detentions in federal court. Many of those challenges have been unsuccessful—because they all go to the DC Circuit too, and that court was quite conservative until very recently.
DC v Heller, 2008. The infamous gun rights case. The DC Circuit ruled that the 2nd Amendment confers an individual right. Laurence Silberman (Reagan) and Thomas Griffith (GW Bush) ruled this way, with Karen Henderson (GHW Bush) dissenting. The full court denied en banc rehearing (the losing side in a 3-judge decision can appeal to the full court, or to the Supreme Court), 6-4. Worth noting is Merrick Garland was one of the judges who voted in favor of en banc rehearing, suggesting he is not sympathetic to the individual right interpretation of the 2nd Amendment. And we all know how this case then ended in SCOTUS.
NFIB V Sebelius, 2012. The Affordable Care Act individual mandate case. The DC Circuit was one of several courts to hear this—and this time they ruled in our favor. Conservative Laurence Silberman and liberal Harry Edwards (Carter) upheld the constitutionality of the law. Conservative Brett Kavanaugh (GW Bush) dissented—but not on constitutionality grounds. He said that the Anti-Injunction Act barred the lawsuit from proceeding—indicating he viewed the mandate as a tax. As we know, SCOTUS also ruled it to be a tax.
King v Burwell, 2015. The Affordable Care Act subsidies case. The absolutely preposterous challenge brought by conservatives arguing that the ACA does not authorize subsidies. We had bad luck on the judges on this one, so we lost in the DC Circuit, as conservatives Randolph and Griffith outvoted liberal Edwards. All was not lost, as by now the DC Circuit was majority-Democratic, so the full court could hear the case en banc and reverse the decision—which is what would have happened had SCOTUS not grabbed the case first.
House v Burwell, 2016. The GOP House has sued over another Obamacare provision, cost-sharing payments to insurers by the government. The GOP claims the payments are unauthorized. A GW Bush-appointed federal trial judge, Rosemary Collyer, agreed. The appeal is now before the DC Circuit, where our chances are better. SCOTUS may see this case too.
Zubik v Burwell, 2016. The Christian right’s proposed expansion of the horrible Hobby Lobby ruling, to grant any employer an exemption from the contraception mandate if he claims it violates his religion. Not just an accommodation, an exemption. (And as we all know, LGBT rights are next, especially if conservatives win this battle.) Most circuits ruled against the Christian right, including the DC Circuit. The 8th Circuit, which I shall cover in a future diary, was the exception. (It’s a majority GW Bush court.)
Climate change—Scalia’s last act, 2016. Conservatives have sued to block Obama’s climate change plans. That case is pending before the DC Circuit. SCOTUS took the unusual step of staying the plans while litigation was pending—most times, the plans would not be shelved until the ruling was issued. That was a strong signal that the conservative SCOTUS majority would kill off the plans when they got the chance—but Scalia died four days later. The case remains pending. We have a good chance to win in the DC Circuit.
Consumer Financial Protection Bureau—Conservatives have a case before the DC CIrcuit to have the CFPB’s power curtailed. They got lucky and drew a conservative 3-judge panel so they may win. But the en banc court could reverse.
I think I am just scratching the surface, but I’ve listed enough cases to make the point—just within the last decade, the DC Circuit has heard a disproportionate number of huge cases, the bulk of them brought by conservatives seeking to hamstring the federal government’s ability to act on behalf of the people. Fellow Kossack FogCityJohn is an attorney who has practiced administrative law and is quite familiar with this is course—I’m sure he could add anything important I’ve missed or correct me if I’m wrong about something.
Because of its great power, the DC Circuit is the biggest battleground of the 13 Circuits. Presidents are well aware of the DC Circuit’s power, and also know that virtually any judge confirmed to the DC Circuit will be a contender for a future Supreme Court seat. For these reasons, presidents will often save their very best Circuit Court nominees for the DC Circuit. We’ve already seen some of the various legal titans who have served on that court. One interesting side note to consider is: when Reagan named a new justice in 1986, he considered both Scalia and Bork, ultimately choosing Scalia. He nominated Bork the next year and we all know how that turned out. But what if he had reversed them? Nominated Bork in 1986 and Scalia in 1987? Would both have been confirmed? Maybe. We’ll never know.
And when Bork was rejected by Democrats who still had some spine, Reagan nominated another DC Circuit judge, Douglas Ginsburg (no relation to the notorious RBG)—and he withdrew when it came out that he used marijuana. It’s almost laughable now to think that would be disqualifying, but just as well—Reagan then nominated Anthony Kennedy.
Furthermore, in the early 1990s, GHW Bush nominated John Roberts to the DC Circuit. Perhaps sensing something (?), Senate Democrats did not process his nomination. GHW Bush did manage, however, to get Clarence Thomas on the DC Circuit in 1990. We all know what came next.
Bill Clinton, of course, had trouble getting nominees through the GOP Senate. One of his blocked nominees was none other than Elena Kagan. The GOP knew she was SCOTUS-bound. Overall, Bill Clinton got just one DC Circuit nominee through a GOP Senate—Merrick Garland. And of course, Garland had been held up for over a year. Why? The GOP claimed the DC Circuit needed no more judges. But of course, when GW Bush became President, the GOP could not wait to fill those vacancies.
GW Bush, of course, nominated several credentialed arch-conservatives to the DC Circuit, which had 3 vacancies when he took office (created by one Carter appointee and two Reagan appointees)—John Roberts again, of course. Janice Rogers Brown, a black woman who is essentially a female Clarence Thomas. Miguel Estrada, Federalist Society alum widely acknowledged to be a SCOTUS front-runner should he be confirmed. During the first two years of the Bush administration, the Democrats held a narrow 51-49 majority (though this contained the likes of Ben Nelson, Joe Lieberman, Zell Miller, and other such conservatives) and did not confirm any of Bush’s DC Circuit nominees. But in 2002, the majority flipped to 51-49 GOP, and in 2003, Roberts was confirmed—to the seat to which Kagan had been nominated. Democrats had more strenuous objections to Estrada and Brown, and continued to filibuster them. Estrada ultimately withdrew, and was replaced by Thomas Griffith—who, it turned out, had practiced law without a license for several years. Bush also nominated Brett Kavanaugh, a lawyer with a distinctly partisan background, to the court. The NYT criticized Kavanaugh here: www.nytimes.com/…
Democrats managed to keep everyone but Roberts off the DC Circuit from 2003-2005 (how, with people like Miller and Nelson and Lieberman etc., I don’t know), but in 2004, their luck ran out. The GOP gained a 55-45 majority. Emboldened, the GOP threatened to invoke the nuclear option (irony alert!) to force through all of Bush’s nominees. As we know, the Gang of 14 cut a deal to head that off, agreeing to confirm Bill Pryor (who has often been cited by Trump as a possible SCOTUS justice), Priscilla Owen, and Brown. Unfortunately, Griffith and Kavanaugh also got through.
Meanwhile, SCOTUS vacancies had opened up. As we know, Bush elevated Roberts to SCOTUS. He considered elevating Brown as well, but chose Alito (from the 3rd Circuit, my home circuit) instead.
Bush’s impact on the DC Circuit ended there, thankfully. Democrats won the Senate in 2006, and refused to confirm Peter Keisler to the Roberts seat. Meanwhile, the seat vacated by liberal Harry Edwards when he took senior status (semi-retirement where he continues to hear cases part-time) was re-assigned to the 9th Circuit, where Obama ultimately filled it with Jacqueline Nguyen.
That brings us to President Obama’s term. When he took office the DC Circuit had two vacancies—the Roberts seat, and the seat vacated by the conservative Raymond Randolph when he took senior status. Regrettably, little happened during Obama’s first term. Obama nominated Caitlin Halligan to the Roberts seat, but the Senate GOP filibustered and filibustered and filibustered some more, blocking her for the entirety of Obama’s first term. Not because they specifically objected to her (although they contrived a few) but because they didn’t want Obama appointing *anyone* to that court. Obama himself bears some blame, too—he was fairly diffident on judicial nominations during his first term (notwithstanding his overhaul of the 4th Circuit, described in part 1 of this series). He did not even make a nomination for the Randolph seat until June of 2012, when he nominated Sri Srinivasan.
Thus, by 2013, Obama had had no nominees confirmed to the DC Circuit. Meanwhile, two more vacancies opened when two Reagan appointees took senior status. Obama renominated Srinivasan to the Randolph seat, and this time the Senate confirmed him. Unanimously. That says something right there about how good he is, if he could get approved unanimously for the DC Circuit and earn praise even from the likes of Orrin Hatch and Ted Cruz.
Naturally, though, this also means his background can’t be overly liberal, and indeed it’s not. Srinivasan clerked for conservative judicial icon J. Harvie Wilkinson of the 4th Circuit, and then he clerked for Sandra Day O’Connor. He had many corporate clients in private practice, even representing a disgraced Enron executive, Jeffrey Skilling, before the Supreme Court. He worked in high-up positions in the Justice Department under both GW Bush and Obama. Here’s an article about him from when he was confirmed for the DC Circuit: www.usatoday.com/…
Even knowing that Srinivasan was SCOTUS-bound as soon as he was seated on the DC Circuit (if Clinton wins, I fully expect she will nominate him at some point, though probably not to succeed RBG), the Senate GOP had to vote for him. But then of course they went right back to their obstructionist ways, vowing no more confirmations to that court.
By now, though, Obama was tired of it. He better understood the importance of the courts, the DC Circuit in particular, and had seemingly grown sick of the GOP’s obstructionist ways. In an unusual step for him, he announced three more DC Circuit nominees in the Rose Garden, in June of 2013: Patricia Millett, Nina Pillard, and Robert Wilkins. No dice, said the GOP, choosing to filibuster them all.
Finally, in November, Harry Reid took that step that we’d been pushing for years—used the nuclear option to break the filibuster and get the judges through. He, too, had had enough. Thus, he broke the filibuster and Millett, Pillard, and Wilkins got through, on generally party-line votes.
And just like that, the DC Circuit was no longer a conservative court! Quite impressive for Obama to swing it in just a few months. It wouldn’t have happened without us, and a Democratic Senate.
Of Obama’s four appointees, Pillard and Wilkins appear to be more left-leaning, while Millett and Srinivasan are more centrist. Pillard worked for the NAACP and in 1996 wrote a brief challenging the Virginia Military Institute’s refusal to admit women. (The SCOTUS ruled 7-1 that barring women was unconstitutional. Scalia dissented and Thomas recused himself because his son attended the school.) I’ve heard her name floated as a worthy potential successor to the notorious RBG. Meanwhile, Wilkins had once been stopped by police, allegedly for speeding, and then filed a lawsuit that forced the state of Maryland to drop the instructions given to police to use racial profiling for traffic stops. He also once worked as a public defender, which would be an asset on SCOTUS. Millett, like Srinivasan, worked in the Justice Department under presidents of both parties. She, unfortunately, made a pro-gun ruling on the DC Circuit: www.washingtonpost.com/…
And of course, I would be remiss if I did not mention SCOTUS once again. All four Obama appointees will be considered for SCOTUS by Hillary Clinton or any Democratic president. They were mentioned earlier this year for the Scalia seat, with Srinivasan, who would be the first Asian-American justice if he gets to SCOTUS, a finalist for the seat. As we know, Obama nominated Merrick Garland, also of the DC Circuit. (The third finalist was 9th Circuit judge Paul Watford, who I will discuss in my 9th Circuit diary.)
I know some people are disappointed with the Garland nomination, lamenting that Obama did not choose someone more liberal, or that Garland does little to diversify the Court. I personally would like a more liberal justice, and I agree that diversity matters (though as a white male I can’t speak much from personal experience). I do, however, think President Obama made a solid choice by nominating Garland. Based on the available record, Garland would fit right in with the four liberal justices who are already on SCOTUS. He’d probably be the least liberal of them, but even if his impact were to simply to replace Kennedy as the median justice, that’s huge. I am also convinced that Merrick Garland is an eminently decent public servant and has far more respect for the judicial role than the man he would replace did. And while confirmation was always a long shot, to the extent anyone had any shot this year, it was Garland. I can respect Obama taking that chance given the uncertainties surrounding the presidential race. Also, whether or not the GOP stalling for a year would forever taint the nominee is highly debatable, but I can see Obama not wanting to take the risk with a younger nominee like Srinivasan or Watford, both 49. They will have other chances to get nominated. Garland not so much.
And let’s not forget—Barack Obama has done more to diversify the federal bench than any president, ever. The DC Circuit is a microcosm of that. He appointed two women, a black man, and an Indian-American. So is the 4th Circuit, covered in part 1 of the series—three women, two black men, a Hispanic man, and a white man. Not to mention the Supreme Court. Only four women have ever served on SCOTUS. President Obama named two of them. He also named the sole Hispanic ever to serve (so far), Sonia Sotomayor. And she helped save affirmative action this year by convincing Anthony Kennedy to uphold it in Fisher v UT Austin. (I’m basing this on the reports that when this case reached SCOTUS three years ago, Kennedy voted to strike down affirmative action, but Sotomayor’s dissent was so forceful and scathing that he got cold feet and punted the case back to lower court. This time around, he voted with the liberals. I’m sure having Sotomayor’s voice helped.)
Thanks to President Obama, Harry Reid, and people like ourselves, the DC Circuit now has a 7-4 Democratic majority. Given the cases the DC Circuit hears, the importance of that cannot be overstated. What would have happened had SCOTUS allowed the en banc rehearing of King v Burwell (called Halbig v Burwell in the DC Circuit) to proceed? The case would have been heard by all 11 active judges, as well as the two senior judges who heard it on the 3-judge panel, Randolph and Edwards. That would have meant an 8-5 split in our favor, assuming a straight party-line vote. What will happen if the 3-judge panel rules against CFPB? We can appeal to the en banc court, where we stand a better chance. How about the climate plan that Scalia & Co. clearly wanted to kill? The Democrats on the DC Circuit, Garland included, are all sympathetic to the EPA. The indispensible Ian Millhiser discusses the case here: thinkprogress.org/…
Labor rules? Merrick Garland has a generally pro-labor record, and labor wins a lot more at the DC Circuit with Obama’s four appointees than before.
We’ve done most of what there is to do for this court, for the near future. We convinced Harry Reid to break the filibuster, and we now have a 7-4 majority and can stop the conservatives hellbent on returning America to the 19th century. But of course, 2016 still has huge implications. 3 judges are eligible to take senior status now—1 GHW Bush, 2 Bill Clinton. With a Hillary Clinton presidency, we could lock in those seats for another 3 decades. Plus, many of the current judges are front-runners for a current or future SCOTUS vacancy. We need the judges picked to be the Democratic ones.
Again, sorry for the long the delay on this. I’ll try to get part 4 out over the weekend. I am curious about two things: which circuit, of the remaining 10, are people most interested to hear about? Also, it has been suggested that I compile this series in a list, something like this: www.dailykos.com/…
How do I that? I do not know.
I’ll close this one with a poll: