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Judicial Vacancies Languish On Key Federal Appeals Court

President Obama last month withdrew the nomination of Caitlin J. Halligan to the federal appeals court in Washington, D.C., after her nomination was blocked by Senate Republicans.
Jim McKnight
President Obama last month withdrew the nomination of Caitlin J. Halligan to the federal appeals court in Washington, D.C., after her nomination was blocked by Senate Republicans.

The federal appeals court in Washington, D.C., is sometimes called the second most important court in the country, regularly delivering the final word on major environmental, labor and national security cases.

But the U.S. Court of Appeals for the District of Columbia Circuit has a whopping four vacancies, the most in the nation, including one opening that dates all the way back to 2005, when John Roberts moved to the U.S. Supreme Court.

For some insiders, the Washington appeals court represents the legal version of Triple-A baseball, the last destination before a player hits the majors. Nearly half of the members on the current Supreme Court — including Chief Justice Roberts and justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg — sat on the D.C. Circuit bench before they reached the big leagues.

"Every president since 1948 has had at least one [or] more judges that were confirmed onto the D.C. Circuit in the first term," said Patricia Wald, a retired judge on the circuit, who served there for 20 years.

Wald told a recent crowd at the Center for American Progress that by failing to get even one nominee confirmed to the court over the past four years, President Obama broke a record that goes back to the days of President Harry Truman.

The situation has people like Caroline Fredrickson sounding alarm bells — and demanding that the White House make the court a priority. She's the president of the American Constitution Society, a left-leaning group that tracks judicial openings.

"These vacancies cannot wait any longer, because the impact on the American public and the administration of justice is so significant that it cannot be relegated to a second-priority issue," Fredrickson says.

Out of 11 slots on the D.C. Circuit, only seven are filled. Four judges were appointed by Republican presidents and three by Democrats. That lineup matters, Fredrickson says, because the D.C. Circuit decides whether a huge number of federal actions pass muster — everything from labor-management fights and voting rights changes in states with a history of discrimination, to appeals from detainees in Guantanamo Bay, Cuba.

Then, Fredrickson says, there's this: "The clean air that we breathe, we hope to breathe, the clean water that we'd like to drink [and] all the EPA regulations around climate change are subject to this court's review. And this court has shown itself extraordinarily hostile to efforts to protect people from environmental dangers."

President Obama's judge nominees have run into strong opposition from Republican lawmakers. One nominee for the D.C. Circuit, Caitlin Halligan, withdrew last month after she was filibustered for a second time in the Senate.

Carrie Severino, the policy director at the conservative Judicial Crisis Network, says partisan fights over nominees to the D.C. Circuit are nothing new. Highly qualified Republican nominees got stranded in the Bush years, too.

"It is often a circuit that Supreme Court justices come from," Severino says. "I think that's why the president is focusing on it — not because of the real judicial need, but because he wants to get his people placed well."

Severino says the workload is down at the D.C. Circuit. It's so slow, she says, that the judges routinely cancel some argument days because there aren't enough cases to fill those slots.

"There are more seats technically assigned to the D.C. Circuit than it really merits given its current caseload," Severino adds. "If anything, some of those seats should be moved to other circuits that have a very high caseload. The D.C. Circuit is by far the lowest caseload of the circuits."

Democrats say the case numbers aren't always the best measure, since most disputes before that court are unusually complex. Retired Judge Wald joked at the recent Center for American Progress event about watching clerks wheel in thousands of pages of complicated materials, her heart sinking all the while.

For the past few months, liberals have been leaning on the White House to do something about the vacancies. On Monday, spokesman Jay Carney said the president would throw his weight behind Sri Srinivasan, a principal deputy in the solicitor general's office. Obama nominated Srinivasan to the court last year.

Srinivasan, 46, has appeared before the U.S. Supreme Court two-dozen times, including during last week's gay marriage arguments. He won support from 12 former officials in the solicitor general's office, including such Democrats as Walter Dellinger and Republicans Paul Clement, Theodore Olson and Kenneth Starr.

From the White House press room, Carney told reporters Srinivasan also had a personal story that appealed to the president.

"Sri's confirmation will be an important first step to filling this court's four vacancies, and he will be, when confirmed, the first South Asian circuit court judge in history," Carney said.

Srinivasan will have a Senate hearing on April 10.

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Carrie Johnson is a justice correspondent for the Washington Desk.