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Court Packing Vs. Court Filling | Commentary

When a lawyer enters the courtroom to argue before the entire U.S. Court of Appeals for the District of Columbia, she faces the intimidating specter of 11 chairs elevated above the lone podium and microphone. When the judges enter the courtroom, three of those chairs remain empty. That is because three of the 11 seats on the D.C. Circuit are vacant. The most important appellate court in the country, with its special jurisdiction for reviewing federal agency actions on environmental, labor, consumer and national security issues, is missing almost a third of its judges. As President Barack Obama has stated, if a third of the seats on the Supreme Court were empty, “we would rightly consider that a judicial crisis.”

On Tuesday, the president nominated three exceptionally qualified candidates to fill the three vacancies: law professor Cornelia Pillard, U.S. District Judge Robert Wilkins and appellate lawyer Patricia Millett. The American Bar Association awarded each of them its top rating of “Well-Qualified,” and the president noted, in the Rose Garden ceremony announcing the nominations, that “they are incredibly accomplished lawyers by all accounts.”

But Sen. Charles E. Grassley, R-Iowa, the ranking member on the Senate Judiciary Committee, is objecting to the nominations from the start, calling the decision to nominate the three individuals at once “court packing.”

But as Grassley surely knows, nominating three judges to fill existing vacancies on one appellate court is not “court packing.” As many legal historians have noted, “court packing” was what Franklin Delano Roosevelt committed when he attempted to add additional seats to the Supreme Court to gain more support for his agenda. Rather than add additional seats, Obama’s nominees would fill existing vacancies, including a seat left vacant by Chief Justice John G. Roberts Jr.’s 2005 ascension from the D.C. Circuit to the Supreme Court.

Grassley doubled down on his ahistorical characterization of the president’s nomination of Pillard, Wilkins and Millett when he said in his statement Monday, “It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda.”

In fact, it’s not hard to imagine. All you have to do is cast your mind back to May 9, 2001, when President George W. Bush nominated three judges on the same day to fill vacancies on the 4th Circuit Court of Appeals: Roger Gregory, Dennis Shedd and Terrence Boyle. On that same day, he nominated John G. Roberts Jr. and Miguel Estrada to the D.C. Circuit; Priscilla Owen and Edith Brown Clement to the 5th Circuit; and Jeffrey Sutton and Deborah Cook to the 6th Circuit. He also nominated Michael McConnell to the 10th Circuit and Barrington Parker to the 2nd Circuit. Eleven judges were nominated in all.

At that time, no one accused Bush of trying to “pack the courts” with his slates for the circuits. Indeed, in his remarks, Bush noted: “With today’s 11 nominees, we continue a constitutional process that involves all three branches of government.” By the end of his first year in office, Bush had made 28 nominations to the circuit courts.

Rather than Obama engaging in “court packing,” Grassley is now trying to engage in “court shrinking” by introducing legislation to reduce the number of judges on the D.C. Circuit. This effort is a shockingly transparent effort to deny the president his constitutional right to nominate federal judges to fill vacant seats. Grassley’s action also ignores the unique and important nature of the D.C. Circuit, which enjoys special jurisdiction to hear cases that go to the very function of the federal government. Chief Justice Roberts wrote an article in 2006, titled “What Makes the D.C. Circuit Different? A Historical View,” in which he identifies all the distinctions between the D.C. Circuit and other appellate courts.

Moreover, we have heard this tune before — in fact, just one administration ago. At the end of the Clinton administration, there were five vacancies on the 15-member 4th Circuit Court of Appeals. That federal court includes the states of North Carolina, South Carolina, Maryland, Virginia and West Virginia. Sens. Jesse Helms, R-N.C., Strom Thurmond, R-S.C., and others indicated that the 4th Circuit did not need any more judges. Five months into his administration, President George W. Bush nominated his slate of three judges to the 4th Circuit. Just two months later, the first nominee was confirmed by a vote of 93-1.

The empty chairs in the D.C. Circuit courtroom symbolize a gaping hole in the functioning of our democracy. They represent a federal court that is being held hostage to the political machinations of Republican senators who seek to block the president’s authority — set out in the Constitution — to nominate judges to sit on the federal courts. Instead of stalling tactics and rewriting history, the Senate needs to promptly fill the seats with the extraordinary individuals Obama nominated.

Leslie M. Proll is the director of the Washington office of the NAACP Legal Defense and Educational Fund Inc.

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