Senate Republicans didn’t back down from their argument in 2013 about why they shouldn’t fill three vacancies on an influential appeals court in Washington, even when it led to a historic showdown and a change in longstanding Senate confirmation rules.
But they have abandoned that argument now, with President Donald Trump in the White House and a protégé of Majority Leader Mitch McConnell up for a vote to be on the U.S. Court of Appeals for the District of Columbia Circuit.
The reversal provides a clear snapshot into how the rhetoric and strategy of the Senate’s decadeslong and ever-escalating judicial confirmation battles led to this week’s expected votes on Justin Walker, a nominee Democrats criticize as inexperienced and ideological but are powerless to stop because of the rule change.
The long-running argument centers on whether the D.C. Circuit is busy enough to need its full slate of judges, which now stands at 11. That court attracts political fights because it hears cases of national sweep on environmental, labor, immigration and other policy issues and has been known as a stepping stone to a seat on the Supreme Court.
This week, the Senate will vote for Walker to fill that contentious 11th seat.
Like many disagreements in the judicial confirmation realm, the argument over the seat weaves a long path through the Senate. The side making the argument varied, depending on which party controlled the White House or the Senate — and not at all on how many cases the D.C. Circuit actually handles.
Back in 1997, when President Bill Clinton had picked a former Justice Department lawyer named Merrick Garland for the 11th seat, Republicans such as Sen. Charles E. Grassley of Iowa didn’t question Garland’s qualifications as much as the court's need for 11 judges.
“Let’s be honest — filling the current vacancies in the D.C. Circuit is about political patronage and not about improving the quality of judicial decision-making,” Grassley said on the floor ahead of Garland’s confirmation vote. “And who gets stuck with the tab for this? The American taxpayer. I think it’s time that we stand up for hardworking Americans and say no to this nomination.”
Then in 2006, Democrats such as Charles E. Schumer of New York picked up on those arguments to oppose President George W. Bush’s pick of Peter Keisler for the 11th seat on the D.C. Circuit. He would fill a seat left vacant when John G. Roberts Jr. became chief justice of the United States in 2005.
“We have been hearing from our friends across the aisle in strident and emphatic tones, we simply do not need to fill the seat to which Mr. Keisler has been nominated, the 11th seat on the D.C. Circuit,” Schumer said at a Senate Judiciary hearing in 2006. “We have been told repeatedly that to fill this seat would be a waste of taxpayer money and a shameful triumph for big government. Why, then, are we speeding toward confirmation here?”
Democrats opposed Keisler for other reasons, including his role in the Justice Department to defend Bush’s security policies. When Democrats regained control of the Senate in 2007, they prevented a confirmation vote.
Republicans brought up Keisler’s treatment in 2013, among the reasons why they blocked four times a confirmation vote for President Barack Obama’s pick of Caitlin Halligan to the D.C. Circuit for that still-vacant Roberts seat.
“According to the Democrats’ own standards — and particularly when there are judicial emergencies in other courts across the country — now is not the time to confirm another judge to the D.C. Circuit,” Utah Republican Sen. Mike Lee said on the floor at the time.
At that time, the D.C. Circuit had four judges appointed by Republican presidents and three appointed by Democratic presidents, with four vacancies. Allowing Obama’s picks would tilt the ideological balance of the court back to Democrats.
Later in 2013, when Obama had three nominees to the D.C. Circuit pending before the Senate, Republicans stuck with the argument about caseloads.
McConnell and Grassley pointed to the number of cases that the 11-member court must handle. Republicans voted to block confirmation votes to fill vacancies of the D.C. Circuit’s ninth, 10th and 11th seats.
McConnell argued on the floor that the D.C. Circuit “doesn’t have enough work to do,” and Democrats “have admitted they want to control the court so it will advance the president’s agenda.”
Grassley also sought to permanently eliminate those seats, with a bill that gained 13 co-sponsors who are still in the Senate Republican Conference today, including Senate Judiciary Chairman Lindsey Graham of South Carolina and committee members John Cornyn and Ted Cruz of Texas and Mike Lee of Utah, along with Susan Collins of Maine, Roy Blunt of Missouri, Marco Rubio of Florida, James M. Inhofe of Oklahoma, Rob Portman of Ohio, Lamar Alexander of Tennessee, John Barrasso of Wyoming, Tim Scott of South Carolina and John Hoeven of North Dakota.
Eventually, after Republicans blocked all three pending nominees, Majority Leader Harry Reid, a Nevada Democrat, used what had been dubbed the “nuclear” option to lower the number of votes needed — from 60 to 50 — to overcome a filibuster and move to a vote on judicial nominees.
Now, statistics show the D.C. Circuit has even fewer cases to handle. And Republicans are expected to vote to confirm Walker for the 11th seat this week, months before the judge he is replacing will even leave the bench.
Democrats, even if they wanted to bring up the caseload argument, don’t have enough votes to block Walker now that the threshold has been reduced to 50.
And Republicans aren’t about to leave a judicial vacancy open just because of what they argued seven years ago.
In an email response to questions to McConnell’s office about his change in stance about the need for the D.C. Circuit to have 11 judges, a senior Republican aide said that the majority leader “is simply recognizing that his colleagues believe that the DC Circuit needs 11 active judges, and he hopes to honor that belief by speedily confirming the 11th active judge.”
“This type of bipartisanship and willingness to accept his colleagues’ view should be lauded, not condemned,” the senior aide said.
And a spokesman for Grassley, who voted in committee to advance Walker’s nomination to the floor this month, said that Reid “clearly set the standards” in 2013.
“Instead of coming to a bipartisan agreement to reduce the size of the D.C. Circuit, Reid and Senate Democrats scrapped the filibuster to ram through nominees during the Obama administration,” George Hartmann said in an email response.
“So the precedent was set in 2013, and as Senator Grassley has said many times, you can’t have one set of rules for Democratic presidents and another set of rules of Republican presidents.”
A spokeswoman for Cruz, who seven years ago backed the Grassley bill to eliminate the judicial slot that Walker will fill, said that the vote now is whether Walker “is qualified to fill this long-established judgeship on the D.C. Circuit.”
“Sen. Cruz believes that Judge Walker is a proven constitutionalist who is qualified to fill the vacancy, which is why he voted to advance his confirmation in the Senate Judiciary Committee last month, and why he looks forward to voting for his confirmation on the Senate floor next week,” spokeswoman Lauren Blair Aronson said.
Walker is expected to be confirmed. When he takes the bench, the court will continue to have seven appointees from Democratic presidents and four from Republican presidents.