The U.S. Court of Appeals for the District of Columbia Circuit is widely considered the second most powerful court in the land because, among other things, it is the court that reviews decisions of key government agencies, from the Federal Trade Commission to the Federal Communications Commission. It is the court where key challenges to federal law are often brought and where knotty issues of executive privilege and constitutional law are decided. And among judges, it has long been the “feeder” court to the U.S. Supreme Court.
And that is certainly the reason it is so empty.
Of the 11 seats on the court, four are empty.
No nominee has been confirmed since 2006.
Highly qualified nominees — most recently, former federal prosecutor Caitlin Halligan — are regularly rejected. Halligan’s nomination languished for two and a half years before a Republican filibuster in the Senate led President Barack Obama to withdraw her name in late March.
All of this makes the letter sent last week by six former solicitors general of the United States, including three Republican superstars, all the more important. In the letter, Paul Clement (who argued against Obamacare and gay marriage), Ted Olson (the nation’s top appellate lawyer under President George W. Bush) and Ken Starr (who led the investigation of President Bill Clinton) joined with their Democratic colleagues to support the “swift confirmation” of Sri Srinivasan, currently the principal U.S. deputy solicitor general, to fill the seat on the D.C. circuit vacated in 2005 by now Chief Justice John Roberts.
According to the bipartisan group, Srinivasan has a “first-rate intellect, an open-minded approach to the law, a strong work ethic, and an unimpeachable character,” is “one of the best appellate lawyers in the country” and is “extremely well prepared to take on the intellectual rigors of serving as a judge on the D.C. circuit.”
But that, for the past seven years at least, has not been enough to get anyone confirmed.
There was a time, not so long ago, when the confirmations of nominees such as Srinivasan were almost routine votes devoid of politics. No longer. The more important the court the more politicized the process. Both sides can blame the other for this descent into base politics, but the results are not subject to debate.
Highly qualified lawyers resist even having their names put up in the first place. For those in private practice, the big deterrent is not necessarily the 90-plus percent cut in pay (judges on the D.C. circuit make less than young associates at big firms like mine), but the prospect of years of purgatory while awaiting confirmation. How do you tell your clients and partners that you are about to be hung out to dry, with no certain result, and that you may or may not be there to handle their cases?
Those who do seek to serve (and this is public service) learn how to fudge all of their answers. “Balls and strikes,” nominees now routinely respond when asked how they will decide cases. Just an umpire, they explain with a straight face; my background will have nothing to do with it.
No serious student of the law believes this. But honesty is by no means the best policy. God help the would-be nominee who has written provocative articles or given provocative speeches — even decades earlier. If you want to be a judge, much less a justice, beware what you say in your law review note.
And the rule of law suffers. The D.C. circuit struggles to keep up with an enormous and critically important docket of cases, causing delays on hugely important legal issues. Far from elevating the rule of law, the knee-jerk filibuster of highly qualified lawyers debases the very foundation of a system that depends on the respect of those who may disagree with the results of a particular decision. If it’s nothing but politics, why obey?
Clement, Olson and Starr deserve to be commended for stepping beyond the bounds of politics to support a man nominated by a president of the opposite party. It remains to be seen whether Senate Republicans will have the integrity to do the same.
— Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.