Editorials and Opinion
Rand Paul's Brand of Judicial Activism (Bloomberg News, 01/26/15)
Cass R. Sunstein: "For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law....Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.” Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty.
There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people."
Republican Claims About Judicial Nominations Combine Gross Inaccuracies With Banal Observations (Huffington Post, 11/07/14)
Nan Aron, President, Alliance for Justice: "Hatch and Gray persist in their bizarre view that it was improper for President Obama to fill longstanding vacancies on the D.C. Circuit, and they complain that rules reform has led to "controversial judges." These claims ignore the fact that President George W. Bush filled exactly the same seats on the D.C. Circuit when they became vacant during his administration, and his appointees included controversial judges Janice Rogers Brown (confirmed by a vote of 56 to 43) and Brett Kavanaugh (confirmed by a 57 to 36 vote)....Of the 62 federal judges confirmed in 2014 so far, 45 -- or 73 percent -- were confirmed with 90 or more votes in favor; 56 nominees -- or 90 percent -- were confirmed with bipartisan support....Senate Republicans have relentlessly obstructed President Obama's judicial nominees"
Radical judge kneecaps clean electricity under cover of boringness (Grist, 10/07/14)
David Roberts: D.C. Circuit Judge Janice Rogers "Brown is a far-right ideologue.... her ruling in the FERC case is just what you’d expect. She is implacably hostile to federal authority, eager to defend federalism and states’ rights, and has clumsily imposed that ideology on an ambiguous regulatory issue. It’s called “judicial activism” and it’s something conservatives claim to oppose, at least when liberal judges do it. Remarkably, none of the stories and blog posts I read about this case — not one — mentioned Brown’s record of reactionary radicalism. ... Meanwhile, it would be great if Obama, liberals, and everyone else concerned with the integrity of social democracy got a little more alarmed about the rightward trajectory of the U.S. judiciary. This is something the conservative movement has been focusing on for decades, and it’s paying grim dividends. Climate hawks should be alarmed too: “This month a three-judge panel of the D.C. Circuit Court of Appeals agreed to hear a challenge to the Environmental Protection Agency’s new climate rules under the Clean Air Act.”
Senate Democrats played more fairly [Letter to the Editor] (Richmond Times-Dispatch [VA], 12/05/13)
Glenn Sugameli: "Unfortunately, the editorial mistakenly equates the transposed Senate Republican and Democratic positions on filibuster rules. Many Republican senators filibustered President Obama’s judicial nominations despite insisting it was unconstitutional to filibuster President George W. Bush’s nominees. In contrast, Senate Democrats did not execute unexplained flips on the Constitution. Instead, their policy change reflected unprecedented Republican decisions to filibuster any possible nominees for three Washington, D.C., Circuit Court vacancies after the Senate confirmed Bush judges to all three seats."
A 'nuclear option' was needed to overcome GOP obstructionists [Letter] (Baltimore Sun, 12/05/13)
Glenn Sugameli: "Robert L. Ehrlich Jr. rewrites recent history in his one-sided column on the Senate filibuster rule ....
He utterly ignores the many Republican senators who filibustered President Barack Obama's judicial nominations after having insisted that it was unconstitutional to filibuster former GOP President George W. Bush's nominees. In contrast to these unexplained GOP flips on constitutional mandates, the positions of the Senate Democrats that Mr. Ehrlich quotes are quite consistent with the Constitution, which neither authorizes nor bans filibusters. The Democrats' rule change reflected the unprecedented Republican decision to filibuster any possible nominees for three D.C. Circuit Court vacancies"
How Can the Senate Get Any Worse? Republicans warn that changing filibuster rules will just poison the atmosphere in the body even more—but it's hard to imagine what that would look like. (Atlantic, 11/27/13)
Norm Ornstein: "the "Gang of 14"—seven senators from each side of the aisle—reached a compromise that ended up confirming such extreme judges as Janice Rogers Brown and Priscilla Owen and returning the Senate to the standard of limiting filibusters to extraordinary circumstances.
What changed? Mainly, Senate Republicans. In 2005, Lamar Alexander, joining most of his colleagues, said, "I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote." But since Obama moved into the White House, Senate Republicans upped the ante dramatically, turning the filibuster into a routine weapon of mass obstruction. On judges, the combination of filibustering even nominees who ultimately were confirmed unanimously or near unanimously, just to soak more of the Senate's most precious commodity, time, and of filibustering not based on qualifications of the nominees but simply to keep slots from being filled, is simply over any line. ... Since Barack Obama became president, several Republican senators have refused to recommend any nominees for district-court vacancies in their states, another breach in fundamental practice.... All three nominees for the D.C. Circuit are well within the mainstream."
On Filibusters, Democrats Won't Be Fooled Again (Jost on Justice: Law & Justice Blog, 11/24/13)
Kenneth Jost: "The Senate Democrats’ decision to abolish the filibuster for presidential appointments except to the Supreme Court cannot be understood without remembering that Democrats played nice back in 2005 and were getting nothing in return from Republicans in 2013. ... The Gang of 14’s deal specifically allowed votes on three of Bush’s pending nominees: Janice Rogers Brown (D.C. Circuit), Priscilla Owen (5th Circuit), and William Pryor (11th Circuit). Confirmed with acquiescence from Democrats, all three have proven themselves to be solidly conservative in their judicial decisions. ... GOP filibusters also blocked two of Obama’s first-term nominees for federal appeals courts: Goodwin Liu for the Ninth Circuit and Caitlin Halligan for the D.C. Circuit. In those nominations, Republicans at least made the pretense, however unconvincing, of criticizing Liu and Halligan for their legal views. Over the past two weeks, however, Senate Republicans took the obstructionist tactic to a new low by blocking votes on Obama’s nominees to fill three vacancies on the D.C. Circuit. The nominees’ qualifications are beyond question ... The real motive was blatantly partisan: they wanted to leave in place the existing balance between four Republican and four Democratic appointees. In fact, the court is not balanced: the six senior judges, all of whom continue to hear cases, include five Republicans and only one Democratic appointee. And none of the Democratic appointees is as far to the left ideologically as several of the Republicans are to the right."
The Public Needs a Nap (New York Times, 11/21/13)
Op-Ed Columnist, GAIL COLLINS: "what’s been happening to nominations to the District of Columbia Circuit Court of Appeals. It has three vacancies, and the Republicans have been refusing to allow a vote on the three Obama nominees to fill them. ... The eight judges who are currently sitting are divided 4 to 4 between Republican and Democratic appointees, but there are also six senior judges who are still working after semiretirement. Five of them are Republican nominees. So the president would naturally like to fill those three vacancies. ... The Senate should fill the vacancies. Then it can have a nice, reasoned debate about the size of the court when one side doesn’t have a ridiculously obvious partisan reason for wanting it smaller. ... And the bottom line is that it’s a good thing to give the minority party some muscle to stop bad or extremist nominees from getting lifetime judicial appointments. But we have crossed the line to crazy when the minority party can announce that the woman who argued 32 cases before the Supreme Court can’t be on the D.C. District Circuit Court of Appeals because it’s too expensive. Change the rules."
A Call To Democrats To Stop Sitting Back On This Business With Judges (Esquire, 11/19/13)
Charles P. Pierce: "It seems that the Republicans are bound and determined not to allow the president to fill the empty seats on the D.C. Court of Appeals.... One of the reasons we elect presidents is because we approve en masse of that president's philosophy toward the law. This means we elect him so that he can appoint federal judges who will be sympathetic to that philosophy to the federal bench. For going on 40 years, we have seen a long march of conservatism in the federal judiciary, especially at the appellate level,... It is not a great stretch to argue that this president was elected (twice) at least partly to reverse the results of that long march. That he is not being allowed to fulfill that part of his mandate does not merely obviate the power of the popularly elected majority in the Senate, it obviates the stated wishes of the entire nation by obviating the power of the popularly elected president of the United States."
First Thoughts: Extraordinary (NBC News, 11/19/13)
By Chuck Todd, Mark Murray, Domenico Montanaro, and Jessica Taylor: "Folks, we’ve moved beyond the Miguel Estrada and Janice Rogers Brown judicial battles during the Bush years, when Senate Democrats filibustered those nominations due to concerns about ideology and qualifications. Now Senate Republicans are filibustering Obama’s judicial picks not based on concerns about ideology or qualifications -- but rather Obama’s ability to make ANY pick to fill the D.C. Circuit. ... In the past, Sen. John McCain (R-AZ) has said that he’d resort to filibusters if “extraordinary conditions” exist. But the only thing that’s extraordinary here is the level of obstruction Senate Republicans are waging against up-or-down votes."
Don’t Fear the End of the Filibuster For Judicial Nominees (Lawyers, Gun$ and Money, 11/19/13)
Scott Lemieux: "since with the filibuster Bush not only got people like Janice Rogers Brown and Priscilla Owen confirmed to the circuit courts but Sam Alito, the most reactionary Supreme Court justice since James McReynolds, confirmed to the Supreme Court it’s not obvious to me how the filibuster is moderating Republican appointments. Republican presidents will appoint awful judges with or without a filibuster. Which, as long as Democrats can do the same, is how it should be because elections matter and governments should be able to govern. There’s no reason to maintain the filibuster."
Statement by the President (The White House, 11/18/13)
"I am deeply disappointed that Senate Republicans have once again refused to do their job and give well-qualified nominees to the federal bench the yes-or-no votes they deserve. The D.C. Circuit, considered the Nation’s second-highest court, has three vacancies. These are judgeships created by Congress. Chief Justice John Roberts and the Judicial Conference of the United States believe that these vacancies should be filled, not removed. And my constitutional duty as President is to nominate highly qualified individuals to fill these vacancies.
Patricia Millett, Nina Pillard, and Judge Robert Wilkins have all received the highest possible rating from the non-partisan American Bar Association. They have broad bipartisan support, and no one has questioned their merit. Yet Senate Republicans have blocked all three from receiving a yes-or-no vote. This obstruction is completely unprecedented. Four of my predecessor’s six nominees to the D.C. Circuit were confirmed. Four of my five nominees to this court have been obstructed. When it comes to judicial nominations, I am fulfilling my constitutional responsibility, but Congress is not. Instead, Senate Republicans are standing in the way of a fully-functioning judiciary that serves the American people. The American people and our judicial system deserve better. A majority of the United States Senate supports these three extraordinary nominees, and it is time for simple yes-or-no votes without further obstruction or delay."
HAS JOHN MCCAIN BEEN INHABITED BY A POD PERSON? (Text & History, 11/18/13)
Judith E. Schaeffer: "Senator McCain stated this past June that all three of President Obama’s pending nominees to the D.C. Circuit -- Patricia Millett, Nina Pillard, and Robert Wilkins -- deserve up-or-down confirmation votes on the Senate floor. In other words, that none of them should be filibustered, and each considered on his or her merits. As Senator McCain further noted, “Elections have consequences.” However, in floor votes over the last two weeks, someone who looks like Senator McCain and calls himself Senator McCain has voted to filibuster Millett and Pillard, and is likely to do the same when Wilkins is considered later today"
Seriously, Ramesh Ponnuru? (Dispatches from the Culture Wars blog, 11/15/13)
Ed Brayton: "he writes this inane column entitled “Republicans Shouldn’t Let Obama Pack the Courts.” And he lies about history in the process:... There’s one very obvious difference that he is covering over here. The Democrats in 2003 filibustered a small number of Bush nominees on specific grounds, arguing that they were too extreme (and with judges like Janice Rogers Brown, one of the ones they tried to filibuster, they had a point). The Republicans are trying to prevent the president from appointing any judges to the D.C. Circuit Court of Appeals, regardless of their qualifications or their views. Those are not even remotely the same thing.
The headline alone tells you how ridiculous it. We know what court packing is.,,, Obama is proposing nothing of the sort. In fact, he is only proposing to do the job that the Constitution gives him, making nominations to fill vacancies on the federal courts. And the Republicans are arguing that he should not be able to do that. And that’s just plain moronic. And Ponnuru almost certainly knows that."
Time to Stop the Senate Filibuster Madness; Blocking qualified D.C. Circuit Court nominees is all about denying a president the right to pick judges to fill vacancies. (National Journal, 11/07/13)
Norm Ornstein: "Watt was not the only victim of a drive-by filibuster; so was Patricia Millett, a superbly qualified and mainstream nominee for the D.C. Circuit Court of Appeals. Only two Republicans supported cloture here; Lisa Murkowski and Susan Collins, and three others voted "present" (which was no help, since anything but a vote for cloture is meaningless with a rule requiring 60 votes, period, to end debate). The rationale here was even more flimsy than that used against Watt, namely that Obama is trying to "pack" the D.C. Circuit. FDR tried to "pack" the Supreme Court by adding seats to the existing Court. Barack Obama is moving to fill long-standing vacancies on the D.C. Circuit. On this Circuit, thanks to a slew of retired judges appointed by presidents long gone, conservatives have an edge that Mitch McConnell is determined to keep no matter what.... When Harry Reid and McConnell reached a deal on filibusters in January, it was clear that a key component ... would only oppose judicial nominations for courts of appeals under "extraordinary circumstances," which clearly means judges without clear qualifications or experience, or extreme ideologies. No one could accuse Millett of either of those characteristics. ... If the other two D.C. Circuit nominees are filibustered and blocked, I would support Harry Reid's move to change the rules now, to move from a 60-vote requirement to stop debate and vote to a 40-vote requirement to continue debate."
A Very Bad, No-Good Week in the Circuit Courts: Reproductive and Fourth Amendment rights did not escape October unscathed. (American Prospect, 11/05/13)
SCOTT LEMIEUX: "One of last week's terrible opinions was issued by the United States Court of Appeals for the District of Columbia Circuit, the very tribunal Senate Republicans believe Obama should be barred from appointing further judges to. In an opinion written by the extremist George W. Bush nominee Janice Rogers Brown, the court held that—in at least some circumstances—the government's mandate that health-insurance providers cover contraception violates the Religious Freedom Restoration Act. ... If taken seriously, Brown's opinion would wreak havoc on the ability of the federal government to protect the rights of employees. If a burden this trivial can justify an exemption, it's not clear how it would be possible to regulate corporations at all ... As Judge Harry Edwards notes in a dissenting opinion that thoroughly demolished Brown's reasoning, the Court has repeatedly held that even under the test used prior to Smith, the kind of "burdens" imposed by the contraceptive mandate simply do not violate the Free Exercise clause. The clause is not a broad license for people to be a law unto themselves."
What You Need To Know About The Severely Conservative Judge Who Just Ruled Against Birth Control (Think Progress, 11/01/13)
Ian Millhiser: "Judge Brown’s opinion barely conceals her contempt for progressive legislation. Prior to her nomination to the D.C. Circuit, Brown labeled the New Deal a “socialist revolution,” and she likened Social Security to a kind of intergenerational cannibalism ... Since joining the federal bench, she authored a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. The very first sentence of her birth control opinion labels the Affordable Care Act a “behemoth.”"
Obamacare's Birth Control Mandate Attacked by Judge Who Was Approved in 2005 "Nuclear Option" Deal (Slate.com, 11/01/13)
David Weigel: "in her decision, Judge Janice Rogers Brown argues that the government's case was laughable, and that the mandate clearly "trammels" religious freedom.... In 2003, while an associate justice on California's Supreme, she was nominated to the D.C. circuit but filibustered by the Senate Democrats. She was only confirmed in 2005, when Republicans threatened to end filibusters for judges -- the "nuclear option."... On the bench, Rogers Brown has ruled basically like Democrats worried she'd rule. This week, they voted en bloc to end a filibuster on Patricia Millett, an Obama nominee who would, theoretically, start to out-vote judges like Brown. "We're worried about that court being a significant bastion for administrative law cases on Obamacare," explained Illinois Sen. Mark Kirk. So he joined the filibuster -- right before he was proven right, again."
The New GOP Plan to Block Obama's Judicial Nominees (Mother Jones, 10/30/13)
Stephanie Mencimer: "Second only to the Supreme Court, the DC Circuit Court of Appeals is considered the most important federal court.... Authorized for 11 judgeships, the court presently has only eight judges. Republicans claim that the court is "evenly divided" among judges appointed by Republicans and Democrats. But the court also has six semi-retired senior judges who still hear cases. When they're included, Republicans have a 9-5 majority. Many of those GOP nominees are also hardcore conservative ideologues....The idea that nominating judges for ordinary federal vacancies is a form of court-packing is a disingenuous claim that has been dismissed even by conservatives. Fox News contributor Byron York, author of The Vast Left Wing Conspiracy, tweeted in May, "It doesn't strike me as 'packing' to nominate candidates for available seats."...While Hatch and his fellow Republicans are now trying to shrink the appeals court, in 2003 he gave a speech decrying the number of DC Circuit vacancies. Hatch noted then that the court was down to only eight judges (which at that time hadn't happened since 1980), and he called the judicial vacancies "a crisis situation" because of the court's workload."
Your Math Is Wrong on D.C. Circuit: The federal D.C. Circuit should have a full complement of 11 judges. (Wall Street Journal, 08/05/13)
Prof. Carl Tobias: ""The D.C. Circuit's Judicial Math" (Review & Outlook, July 25) omits several critical considerations ... appeals have enormous records that can run to 50,000 pages and present complex issues of law, science and economics.... the U.S. Judicial Conference, the most respected authority on judgeship needs, which Chief Justice John Roberts chairs, officially recommended to Congress that the D.C. Circuit requires 11 judgeships. [based] on conservative estimates of work and case loads to which Congress has conventionally deferred. Third, most senior judges carry a quarter or half of an active judge's caseload. Fourth, many regional circuits have more senior judges than the D.C. Circuit. Finally, the Senate confirmed President George W. Bush's nominees to fill the ninth, 10th and 11th seats. Thus, the Senate must expeditiously scrutinize and vote on the well-qualified nominees for the three current vacancies."
Obama, Congress fight over judges (Miami Herald, 06/07/13)
Opinion by EMILY BAZELON: "The president needs these judges to cement his own legacy, since the D.C. Circuit is second in importance only to the Supreme Court.
Obama is also safeguarding the power the Constitution gives every president to select federal judges. It’s the Senate’s job to advise and consent, but that is not supposed to mean automatic stonewalling by the minority, which Republicans have done much of since Obama took office."
A 'Pack' of Nonsense (Huffington Post, 06/07/13)
Doug Kendall: "It is conservatives who have, successfully, used appointments to the D.C. Circuit to advance their policy agenda in recent years. By putting judges from the tea party fringe, such as Janice Rogers Brown, and conservative political operatives, such as Brett Kavanaugh, on this critical court, President George W. Bush helped produce a court that is, in the words of Pulitzer Prize-winning columnist and George Mason Professor Steven Pearlstein, waging "judicial jihad against the regulatory state." ...President Obama does not need judges who will advance a progressive agenda. He simply needs judges who will uphold validly enacted laws and reasonable regulations. This is reflected in his nominees. If President Obama were seeking ideological warriors for the D.C. Circuit, it is unlikely that he would have nominated two people who served long stints in the Office of the Solicitor General under George W. Bush, as is the case of his one confirmed nominee to the court, Sri Srinivasan, and one of his new nominees, Patricia Millett."
Obama’s Fight Song (Finally): The president is getting aggressive about his judicial nominees. It’s about time. (Slate.com, 06/04/13)
Emily Bazelon: "The president needs these judges to cement his own legacy, since the D.C. Circuit is second in importance only to the Supreme Court.
Obama is also safeguarding the power the Constitution gives every president to select federal judges. It’s the Senate’s job to advise and consent, but that is not supposed to mean automatic stonewalling by the minority, which Republicans have done much of since Obama took office. It’s time to take the fight to them rather than sit back. Nominating three candidates at once makes the problem of judicial vacancies far more visible than it has been since Obama was elected. That should up the political price for GOP obstructionism."
Nominations Battle Heats Up with Obama’s Three D.C. Circuit Selections (American Constitution Society Blog, 06/04/13)
Jeremy Leaming: "In announcing today three nominations to the powerful U.S. Court of Appeals for the District of Columbia Circuit, the president is taking on senators, such as Chuck Grassley (R-Iowa), who have mounted a concerted effort to block him from bringing balance to the D.C. Circuit,"
BREAKING COURT NEWS: President does job. Republicans set hair on fire (Huffington Post, 05/30/13)
Nan Aron, President, Alliance for Justice: "Senator Chuck Grassley claims that the D.C. Circuit is so underworked it doesn't really need all 11 judges that the law says it does, so he insists that now would be a convenient time to stop filling the seats. The fact that 15 of the last 19 D.C. Circuit Court judges were appointed by Republicans is, of course, irrelevant; as is the fact that he voted to confirm an 11th judge for the same court when George W. Bush was president."
Republican Court Unpacking Plan Takes Judicial Manipulation to a New Level (The White House, 05/29/13)
Dan Pfeiffer White House Blog post: "Republicans started pushing a proposal to reduce the number of judges on the D.C. Circuit from 11 to 8, a blatant attempt to shrink President Obama’s constitutional authority to fill this court. ... And on the merits, Senator Grassley’s “court unpacking proposal” fails to make any sense. In fact, in 2005, the Senate – including Senator Grassley – voted to confirm Judge Janice Rogers Brown to the D.C. Circuit as the tenth active judge and Judge Thomas Griffith as the eleventh active judge. In 2006, the Senate – again, including Senator Grassley – voted to confirm Judge Brett Kavanaugh as the tenth active judge.... In fact, the past five presidents each have had at least three judges confirmed to the D.C. Circuit – and 15 of the past 19 judges confirmed to this Court have been appointed by Republican presidents. But so far, only one of President Obama’s nominees has been confirmed. Make no mistake about it: this is court packing in reverse and a cynical attempt to manipulate the third branch of government."