There Are "No Vacancies" On The D.C. Circuit And Other Right-Wing Myths


In response to Senate Democrats invoking the so-called "nuclear option," right-wing media advanced a number of myths not only about filibuster reform, but about the qualifications of President Obama's nominees who have languished in the confirmation process. What right-wing media have ignored is that Democrats used the "nuclear option" only after unprecedented GOP obstruction prevented Obama's judicial and executive nominees from receiving an up-or-down vote.

MYTH: Republicans Didn't Cause Congressional Gridlock

Weekly Standard Editor Bill Kristol: "Republicans Aren't Responsible" for Senate Gridlock. On the November 24 edition of ABC's This Week With George Stephanopoulos, The Weekly Standard's Bill Kristol rejected fellow panelist Donna Brazile's assertion that the Senate is dysfunctional because of "hyper-partisanship" on the part of Republicans:

DONNA BRAZILE: So, what, are we going to go back to hyper-partisanship on steroids? The fact of the matter is, is that Congress is already mad as hell, they were not interested in getting a lot done. I think the president is going to have to continue to push them, push them on immigration, push them on the farm bill, and of course with all of the budget agreements coming to a deadline pretty soon, he's going to have to continue to see if he can bring some of the middle together. The truth is, is that Washington, D.C. is dysfunctional, the Republicans enjoy gridlock, because they really -- and we saw this week -- they have no other agenda.

BILL KRISTOL: Republicans passed legislation to let people keep their healthcare if they like it, which is as I recall is something the president vaguely said people should be able to do. It's not been brought to the floor of the Senate. The Republicans aren't responsible for gridlock in this situation.

BRAZILE: They're not responsible for gridlock, Bill? Where the --


FACT: The GOP Engaged In Unprecedented Obstructionism That Prevented Up-Or-Down Votes On Both Legislation And President Obama's Nominees

Maddow Blog's Steve Benen: GOP "Pushed Obstructionist Tactics To Levels Never Before Seen." Contrary to Kristol's assertion, it is demonstrably true that Senate Republicans have engaged in unprecedented levels of obstructionism. As Steve Benen points out, Democrats did not arrive at the decision to invoke the "nuclear option" lightly:

Since radicalized Republicans claimed the House majority in 2011 and began reflexively opposing all Democratic measures in the Senate in 2009, Congress has exactly zero major legislative accomplishments. Literally, none. We've seen a government shutdown and two debt-ceiling crises, but bills haven't, you know, become law.

The prospect of pushing this total below zero seems unlikely.

Specifically  in the Senate, the Republican minority pushed obstructionist tactics to levels never before seen in the United States, launching unprecedented filibusters against cabinet nominees and even imposing the first-ever blockade against all nominees to the D.C. Circuit -- regardless of the nominees' qualifications.

What, exactly, would ... critics have Senate Democrats do? Ask Republicans nicely to be more responsible? (For the record, Dems did try this.) The American system of government cannot be put on hold, indefinitely, because radicalized congressional Republicans no longer believe elections have consequences.


Democrats, borrowing an idea Republicans themselves came up with, have now returned the Senate process to the way it used to be before the abuses spun out of control. This makes the Senate "worse"? How?

It amazes me that anyone watching Capitol Hill could fail to recognize that Republicans left Democrats with no other choice. Non-partisan scholar Norm Ornstein said of GOP tactics, "This was an in-your-face, go-ahead-I-dare-you equivalent of a bully saying, 'Go ahead and hit me,' When the other kid says, 'No,' you spit in his face, kick him in the groin and force him to go ahead and do it." [Maddow Blog, 11/22/13]

MYTH: Democrats Are "Hypocrites" Because They Filibustered Republican Nominees In The Past Changing Filibuster Rules Is "Beltway Hypocrisy At Its Finest." Fox News media critic Howard Kurtz was quick to point out that some of the Senators who supported the "nuclear option" had used stalling tactics in the past, complaining that "both parties play the same game":

The reason this story makes me roll my eyes is that both parties play the same game. When they're in the minority, as the Democrats were during the Bush administration, they stall, block and filibuster the other party's nominees and try to wrap it in some kind of principle. When they're in the majority, they wail and moan about obstructionist behavior by a ruthless opposition determined to cripple the president. It's Beltway hypocrisy at its finest.

It was striking that Obama (who spoke in favor of the filibuster as a senator) came out into the briefing room to praise the move by Harry Reid and beat up on the Republicans for "repeated abuse of these tactics" (though he allowed that "neither party has been blameless for these tactics"). He said about 20 nominees were filibustered in the few decades before he took office, while almost 30 have suffered that fate during his administration (that includes several recent judicial nominees).

Oddly, the president used his turn at the mike to blame the Republicans for blocking efforts to create jobs, equal pay for women, immigration and gun control -- though none of those issues are affected by a vote that was strictly about presidential nominations, except to the Supreme Court. [Fox, 11/22/13]

FACT: Democrats Did Not Blanket Filibuster And Ultimately Allowed Extreme Right-Wing Nominees Up-Or-Down Votes

Slate: Bush's Extreme Nominees Still Have "Staggering" Effect On Judiciary. Though it is true that Senate Democrats opposed some of Bush's nominees during his presidency, the use of the filibuster was generally limited to ultra-right-wing picks who were pushed through the confirmation process aggressively:

If Priscilla Owen and Janice Rogers Brown sound familiar to you, that's because they were the two Bush judicial nominees at the center of the Great Filibuster Showdown of 2005. In May 2001, just after taking office, Bush introduced 11 nominees for vacancies on the federal appellate courts. He was signaling his intention to reshape the federal judiciary, and his willingness to fight for his nominees, right down to the bloody end. Because that's what his base demanded. Democrats blocked some of those appointments. Bush stuck to his guns. In 2004, immediately following his re-election and emboldened by Republican gains in the Senate, he pushed forward a list of judges he planned to renominate, despite what he characterized as years of Democratic obstruction. Both Owen and Brown were on that list. And as Charlie Savage detailed at considerable length in 2008, the effect of the Bush nominations on the federal judiciary was staggering. It still is.


Obama cared enough about the Supreme Court to push for his two nominees, Elena Kagan and Sonia Sotomayor. But with a handful of notable exceptions, the president has not made bold choices for the appeals courts. And when his nominees have met obstruction in the Senate, he has rarely fought for them. Last summer, when he tapped Millett, Obama signaled that he was ready to take a bigger stand by presenting her as part of a package of three D.C. Circuit choices. Now it's time for him to come through. If he needed any more reminders of the power of the bench -- a power that endures for decades after a presidency has ended -- [recent anti-reproductive rights decisions by] Owen and Brown just gave it to him. In a double dose. [Slate, 11/1/13]

The Washington Post: Filibuster Abuse Is Unprecedented And "Half Of All Filibusters Of Executive-Branch Nominees Have Occurred Under President Obama." The Post's James Downie pointed out that the GOP turned the filibuster "from a rarity to an oft-used tool for nullification and unprecedented obstruction":

Until very recently in U.S. history, filibusters were rarely used. Half of all filibusters of executive-branch nominees have occurred under President Obama, and it was obvious from the first day of his presidency that Republicans would use the tactic to hamstring the government and block Obama.

Senate Majority Leader Harry Reid, then, had every right to push for changes to filibuster rules four years ago, when GOP use of the filibuster was already out of control. But instead, Reid offered deal after deal to Senate Republicans. They accepted some. They honored none. Instead, the delaying tactics have continued. Frequently they have been used to block the implementation of laws the Senate had passed -- the two-year filibustering of the first head of the Consumer Financial Protection Bureau, for example, just because Republicans didn't like the law. And Republicans have paired judicial nullification with legislative nullification, blocking a record number of Obama's judicial appointees -- a power the Constitution actually mentions, unlike the filibuster -- for no real reason other than that they were Democratic nominees, not Republican ones. (Democrats were guilty of this under President George W. Bush as well, it must be noted, and deserve criticism for that, even if the number of filibusters was lower.)


[The GOP] could have stopped the unprecedented number of filibusters of presidential nominations, given that the president has a clearly defined constitutional responsibility to appoint people. They could have stopped blocking duly passed laws. But they didn't.

So Republicans decrying filibuster reform as "dictatorial" or "a day to be sad" or other hyperbolic claims should look in the mirror. No one forced them to turn filibusters from a rarity to an oft-used tool for nullification and unprecedented obstruction. They have only themselves to blame. [The Washington Post, 11/21/13]

MYTH: The Openings On The D.C. Circuit Are Not Actually "Vacancies"

NRO's John Fund Incorrectly Stated That There Were No Vacancies On The D.C. Court. On the November 22 edition of Fox News' The Kelly File, National Review Online national affairs columnist John Fund insisted that there were no vacancies on the court, just open "slots" that may or may not need to be filled: 

HOST MEGYN KELLY: The D.C. Circuit Court of Appeals, which has been called the second-most powerful court in the land ... it's the court that would most likely be reviewing challenges to Obamacare or other presidential actions. That's the first court of order on which he's going to fill some vacancies, is it not, John?

JOHN FUND: Well, but they're not really vacancies. You know, they're slots. And the slots are available if the workload is necessary. But, the D.C. Circuit's workload has kept going down. It hears fewer appeals every year. ... The workload doesn't require every vacancy be filled.

FACT: There Are Indeed Three Vacancies On The D.C. Circuit.

People For The American Way: Vacancies Need To Be Filled Because "Comparisons Involving The Raw Number Of Cases Filed Are Meaningless." Any claim that the openings on the D.C. Circuit are not vacancies not only defies the actual meaning of the word, but is a weak foundation for the right-wing argument that the D.C. Circuit court is underworked, according to People For The American Way:

The Judicial Conference has stated clearly that comparisons involving the raw number of cases filed are meaningless, because of the uniquely complex nature of the D.C. Circuit's caseload.

The D.C. Circuit's caseload is fundamentally different from that of every other federal appeals court, chiefly because it handles a uniquely high volume of extremely complex, time-consuming administrative appeals.


Raw filing numbers reveal little about the DC Circuit's actual workload, because they indicate nothing about how complex those cases may be. The court could add or subtract 100 filings, but the impact on the court's workload would be enormously different depending on how many of those are complicated administrative appeals. As Judge Tymkovich noted, although the court's raw caseload numbers may go up and down, it's workload has remained relatively steady over the past decade.

In fact, in the D.C. Circuit in the year ending June 30, the median time for cases from time of filing a notice of appeal until final disposition was 11.8 months, longer than every circuit but one. That is not a sign of an underworked court. [People For The American Way, 11/14/13, emphasis original]

Constitutional Accountability Center: Eliminating Seats On The Court Is A "Partisan Sham." As the Constitutional Accountability Center reports, the attempt to reduce the number of seats by Senate Republicans is nothing more than a "ploy to give cover to Senate Republicans who have no intention of letting a Democratic President fill those three vacancies":

Senator Charles Grassley, Ranking Member of the Judiciary Committee, ... announc[ed] that he was introducing a "Court Efficiency Act," S.699, which would, if enacted, eliminate three of the 11 authorized judgeships from the D.C. Circuit, and add one judgeship each to the Second Circuit and the 11th Circuit. Senator Grassley claimed the proposal was justified by the "imbalance" in the workloads of three Circuits, and stated that the bill would take effect upon enactment. All of the other Republican members of the Judiciary Committee were identified as co-sponsors of the bill. 

We immediately blasted this proposal for the partisan sham that it is: a "mass filibuster" of President Obama's future nominees to this critical circuit court. Senator Grassley's bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic President fill those three vacancies on the D.C. Circuit. The "workload" argument is a smokescreen. As Judiciary Committee Chair Patrick Leahy has observed, Senator Grassley and his Republican colleagues had no problems in 2005 confirming G.W. Bush nominees Janice Rogers Brown and Thomas Griffith to fill the 10th and 11th seats on the D.C. Circuit when the caseload per active judge was less than it is now.

That Senator Grassley's proposal to eliminate the 9th, 10th, and 11th seats on the D.C. Circuit is a partisan ploy is evidenced not only by the numbers but also because it is not based on any study and in fact ignores recent recommendations of the Judicial Conference to Congress regarding the number of judgeships on the federal courts. By letter of April 5, 2013 to Senate Judiciary Chairman Patrick Leahy, a copy of which was also sent to Senator Grassley, the Judicial Conference transmitted to the 113th Congress "the Conference's Article III and bankruptcy judgeship recommendations and corresponding draft legislation for the 113th Congress." With respect to the circuit courts, these recommendations include the addition of four judges to the Ninth Circuit and one to the Sixth Circuit; there is no recommendation to eliminate any of the judgeships on the D.C. Circuit or to leave any of that court's vacancies unfilled. [Constitutional Accountability Center, 4/17/13, emphasis original]

MYTH: Without The Filibuster, Obama Will Appoint "Radicals" To The Judiciary And To Executive Branch Positions

Fox News Reported On D.C. Circuit Judicial Nominee Nina Pillard, Citing Critics Who Called Her A "Radical Feminist." In a November 25 segment on America's Newsroom, Fox News contributor Shannon Bream reported on the right-wing criticism of judicial nominee Cornelia "Nina" Pillard, namely that she is a "radical feminist": 

CO-HOST MARTHA MACCALLUM: What are the critics saying that are opposed to her?

BREAM: Well they say she is way out of the mainstream and she deserves a lot of scrutiny ... here's Carrie Severino of the Judicial Crisis Network:

SEVERINO: Nina Pillard is probably the most extreme judge that has been nominated for this court, and possibly for any court in the country. She has a very radical track record as a law professor, really seems to view everything from a radical feminist perspective, down to thinking that abstinence education violates the equal protection clause and feeling that women are being objectified as "breeders" in the country.

BREAM: She has used that word, referring to women as "breeders," if they are forced to carry pregnancies they don't want to have. But at this point it looks like there is no blocking her, it is likely that she will take a seat on that very important court.

FACT: President Obama's Judicial And Executive Nominees Have Been Consistently Called Highly-Qualified And Uncontroversial.

Huffington Post: Pillard Was The "Third Noncontroversial Nominee That Republicans Have Filbustered." Along with fellow nominees Patricia Millett, a moderate Washington, D.C. attorney and Judge Robert Wilkins, a sitting federal judge, Nina Pillard has been characterized as highly-qualified. But as the Huffington Post reported, the qualifications of the nominees did not appear to matter much to Senate Republicans:

Senate Republicans filibustered another one of President Barack Obama's nominees on ... Nina Pillard, a Georgetown University law professor and a noncontroversial nominee to the D.C. Circuit Court of Appeals.


Republicans readily admit their opposition to Pillard isn't about her. In fact, they don't really have a problem with any of Obama's picks for the D.C. Circuit, the second most powerful court in the nation. They just don't want him to fill its three vacancies. Many of them say the court isn't busy enough to warrant filling its empty seats; others make the counterintuitive argument that Obama is "court-packing" by filling routine vacancies. But both of those arguments gloss over the fact that the president, any president, has a constitutional duty to fill empty court seats, and barring extraordinary circumstances, the Senate is supposed to give nominees a vote.

Pillard's filibuster is the latest example of how the Senate isn't holding to that standard anymore. Not only is she the third noncontroversial nominee that Republicans have filibustered in the last two weeks, but she is now the 20th Obama nominee who is either currently being blocked or was blocked and ultimately withdrew from the process. Those blockages cause a logjam that reverberates through the judiciary and the executive branch, as positions have gone unfilled at crisis levels dating back to 2007.

The Huffington Post crunched some data and found that, as of Tuesday, 13 judicial nominees have been returned to Obama and were not renominated or withdrew their nominations, four judicial nominees aren't moving because GOP senators won't let them advance in the Senate Judiciary Committee, and three other nominees (two judicial, one executive) were recently filibustered for reasons that had nothing to do with their qualifications. [Huffington Post, 11/13/13]

Slate: Pillard's Mainsteam Opinions About Reproductive Rights Are "The Stuff Basic Gender Fairness Is Built On." Legal expert Dahlia Lithwick pointed out that the "vicious attacks" on Pillard condemn "the idea that women, not the government, should have the same power as men to organize their economic lives by controlling their reproductive lives":

[Pillard is a] "feminist" insofar as she has spent part of her career advocating for women's equality (including a successful brief challenging the men-only admissions policy at the Virginia Military Institute, and a successful challenge to gender-biased family leave policies). Pillard's "radical feminism" appears largely to take the form of seeking equality for women, which would certainly be a disqualifying feature of her advocacy work. If it were 1854.

Happily for Senate Republicans, when it comes to women's rights every year is 1854 and Pillard's confirmation hearing yesterday before the Senate Judiciary Committee thus unspooled along depressingly predictable lines: a meaningless word salad of meaningless words including "judicial activism" (used wrongly to mean "I hate her") and "court packing" (used wrongly to mean "filling existing vacancies") and "out of the mainstream" (used wrongly to mean "pro-women").


Which brings us, of course, to abortion, which is where we always arrive, no matter where we begin. The focus here is on Pillard's language, again in this case the academic claim that abortion and contraception must "free women from historically routine conscription into maternity." Beyond that statement, the principal affront appears to lie in the fact that she has taken the position -- long espoused by Justice Ruth Bader Ginsburg and many, many legal scholars -- that there is an equal protection argument for giving women the right to choose, and not simply a privacy right. This is not a radical or feminist argument. It's of a piece with Pillard's general view that in order to fully achieve parity with men, women need to be able to decide if, when, and how to have babies. Her language of "breeding" or "conscription" may be off-putting. That's probably her point. But the idea that women, not the government, should have the same power as men to organize their economic lives by controlling their reproductive lives, is still considered "radical feminism" only in places like Saudi Arabia. [Slate, 7/25/13]

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