November 21, 2013, 05:20 pm
Senate poised to tip regs court in Obama’s favor
By Julian Hattem
The move by Senate Democrats Thursday to strip the minority party of many of its filibuster powers on nominations could have broad implications for the rest of President’s Obama’s second-term agenda.
The rules change will likely help Democrats confirm three nominees for the U.S. Court of Appeals for the D.C. Circuit, which oversees federal agency decisions and has been considered the country's second most powerful bench.
The 11-seat court now has eight members, divided equally between Democratic and Republican appointees. The confirmation of Obama’s nominees would upset that balance.
The shift could have a major impact on legal challenges to regulations and other executive actions, because the court handles its case by setting up three-judge panels through a lottery.
“Most of the time, that lottery actually has the chance to be substantively important, and now litigants are going to be facing a much more left-heavy lottery,” said Philip Wallach, a fellow at the Brookings Institution.
The D.C. Circuit will be at the center of litigation over parts of the Affordable Care Act and the Obama administration’s efforts on climate change.
One controversial upcoming regulation from the Environmental Protection Agency would impose a limit on greenhouse gas emissions from existing power plants, a rule-making effort that critics say is part of the president's “war on coal.”
“That regulation will be one of the most consequential regulatory fights in the history of regulation in the United States, and it’s hard to imagine it not ending up in court one way or another,” Wallach said.
Conservatives have fought the president’s efforts to fill the three empty seats, arguing the court’s workload doesn’t justify 11 members. They also accused Obama of trying to “pack” the bench with like-minded judges to bolster the administration’s power.
“The court will become even more pro-government,” said Tom Fitton, head of the right-leaning Judicial Watch.
Fitton said his organization opposes filibusters of judicial nominees, but argued the rules change amounts to “an attack on the system.”
He also predicted that the rules change could "make it tougher for so-called moderate Democrats on judicial nomination votes," because they won't be able to depend on Republicans to block them.
Obama on Thursday countered conservative complaints about the nominations.
“The Constitution charges the president with filling vacancies to the federal bench,” he said in an appearance in the White House briefing room. “Every president has exercised this power since George Washington first named justices to the Supreme Court in 1789.”
“What's at stake is the ability of any president to fulfill his or her constitutional duty,” he said.
Obama's nominees for the D.C. Circuit are Patricia Millett, Robert Wilkins and Cornelia Pillard.
In addition to the D.C. Circuit court, the Senate’s action should help fill many of the 93 vacancies in federal courts across the country.
“There’s a lot of real important judicial workload issues that the Senate being able to confirm a bunch of nominees is likely to alleviate,” Wallach said. http://thehill.com/blogs/regwatch/court-battles/191142-senate-poised-to-tip-regs-court-in-obamas-favor