In a recent editorial, The Washington Times accused Democrats of planning to play "the race card" by criticizing Senate Republicans' historic obstruction of President Obama's well-qualified and diverse judicial nominees.
Senate Republicans have engaged in unprecedented obstruction of Obama's judicial nominees, which is preventing an up-or-down vote on current nominees to the critical U.S. Court of Appeals for the D.C. Circuit, Cornelia "Nina" Pillard, Patricia Millett, and district court judge Robert Wilkins. Yet the editors of the Times are quick to side with Senate Republicans who dismiss any criticism of their obstructionist strategy as nothing more than "a well-worn card."
From the November 18 editorial:
Senate Republicans are standing up, so far, to President Obama's attempt to pack the U.S. Court of Appeals for the D.C. Circuit with radical judicial activists. A filibuster blocked a vote on the confirmation of Cornelia Pillard last week and of Patricia Millett two weeks before that. Predictably, Senate Democrats declared that the forthright Republican opposition was another skirmish in the "war on women."
"It's a well-worn card," says Sen. Chuck Grassley, Iowa Republican, of the Democratic strategy. "And they play it every time." Well, not quite every time. When Republicans attempt to block confirmation of U.S. District Judge Robert L. Wilkins, who is black, to the appellate bench, Democrats will play the race card.
Opposing women and blacks is said to be part of Republican war on two fronts. It's not war when Democrats oppose female and black nominees. Forty-three Democrats voted unsuccessfully to deny George W. Bush's nominee Janice Rogers Brown to the appellate bench because she was not woman enough, just as Clarence Thomas was judged by Democrats to be not black enough. The Democrats guard their race and gender formulas as fiercely as Coca-Cola protects the formula for the popular soft drink.
Mr. Obama let slip the game at a private Democratic Senatorial Campaign Committee fundraiser early this month. "We are remaking the courts," he told them. The claim was brazen enough to make the ghost of FDR, lurking nearby, blush.
Republicans are rightly troubled by the prospect of remaking the courts by adding radical activists to a bench that doesn't even need new judges. Senate Minority Leader Mitch McConnell says that if more judges are added to the panel, "there wouldn't be work enough to go around." With some other federal appeals courts having legitimate vacancies, attention should be paid to "where judges are needed and where they're not," says Sen. John Cornyn, Texas Republican, "And this court demonstrably doesn't need new judges. It's not any more complicated than that."
The editorial is a stale rehashing of repeatedly disproved right-wing talking points.
To start, the "Obama is court-packing" myth has been thoroughly debunked. "Court-packing" has a specific meaning -- actually increasing the number of seats on the bench, not just filling vacancies for existing seats. If anything, the closest thing to court-packing currently under discussion is the GOP's recent proposal to lop off these empty seats rather than have a Democratic president fill them: court-packing in reverse.
Moreover, the Times' invocation of past Democratic opposition is a false equivalence -- especially since both of its examples, Clarence Thomas and Janice Rogers Brown, were ultimately appointed to the judiciary after a simple majority vote. By contrast, Obama's picks, both judicial and executive, continue to languish in the appointment process. In fact, Republicans' filibuster of Wilkins on Monday was the third Republican filibuster of a D.C. Circuit nominee in a row. Despite being consistently classified as "highly-qualified," Obama's nominees have continued to fall victim to unprecedented Republican obstructionism.
The Times' focus on the apparent lack of work to be done on the D.C. Circuit is also misleading. The quote it cites from McConnell -- that there "wouldn't be enough work to go around" if the D.C. Circuit were operating at its full capacity -- was fueled by an anonymous source solicited by Grassley, supposedly a judge on the court, whom Republicans refuse to identify. The anonymous quote has been advanced uncritically as a justification for the continued filibustering by GOP senators, and it recently made the jump to Fox News, despite the fact that it was in reference to creating more judgeships, not filling existing seats.
But perhaps more important, the Times is advancing a specious numbers game. With the D.C. Circuit, the quality of the cases is more meaningful than the quantity. As Patricia Wald, former chief judge of the D.C. Circuit, pointed out on the record, the court "hears the most complex, time-consuming labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives. ... My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases. The nature of the D.C. Circuit's caseload is what sets it apart from other courts." This sentiment about the unique importance of the D.C. Circuit actually echoes Chief Justice John Roberts, and the U.S. Judicial Conference sees no reason to shrink this important bench either.
The Times' unsubstantiated attempt to paint Obama's nominees as "radical" also fails, since it is clear that Republican opposition has nothing to do with their qualifications, a position the GOP freely admits. Republicans have repeatedly blocked a remarkably diverse slate of highly-qualified women and people of color, despite having no legitimate reason to do so. It is this behavior that makes the GOP look so suspect, regardless of the Times' attempt to deflect responsibility. As reported by The Huffington Post, "The diversity of the group is hard to overlook. Ten of the sidelined judicial nominees are women, two are openly gay and nine are minorities. ... The lone executive nominee being blocked right now ... is African American."