In 2011, Senate Republicans tried to effectively repeal the law creating the Consumer Financial Protection Bureau by simply refusing to confirm anyone to lead this agency. Similarly, by leaving several seats on the National Labor Relations Board vacant, Senate Republicans could effectively shut down this agency as well. President Obama eventually blocked these efforts to shut down two agencies by recess appointing leaders to their ranks. So when the severely conservative United States Court of Appeals for the D.C. Circuit struck down Obama’s recess appointments, it held that the political party American votes did not chose to control the White House or the Senate (or, for that matter, the House) has the unilateral authority to shut down agencies created by an Act of Congress.
This is not an isolated incident for the D.C. Circuit, which, due to its steady diet of major national security and regulatory cases, is second in power only to the Supreme Court of the United States. Two judges on this powerful court recently signed an opinion claiming that all labor, business or Wall Street regulation is constitutional suspect — one of whom was the author of Friday’s attack on the recess appointments power. Meanwhile, four years after George W. Bush’s policies were soundly rejected by the American people, the D.C. Circuit may have done more than any other group to keep conservative environmental policies in place. At one point, the Republican court struck down regulations that would “prevent between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.”
Currently, there are four vacancies on the DC Circuit, which means that if President Obama fills all of these open seats, he would break the Republican Party’s hold on this court and Democratic appointees would enjoy a 7-4 majority among the court’s active judges. Unfortunately for people who think Republicans shouldn’t be able to unilaterally shut down agencies, Senate Republicans are working hard to make sure that doesn’t happen. They filibustered Caitlin Halligan, an outstanding attorney, former Supreme Court law clerk and Obama’s first nominee to the D.C. Circuit, because the state of New York once took a position the National Rifle Association disagrees with and Halligan argued that position as New York’s solicitor general. And now they appear to be building an even thinner case against the president’s second nominee to this court.
Sri Srinivasan should raise no red flags for a conservative senator acting in good faith. He clerked for conservative Reagan-appointed Judge J. Harvie Wilkinson and then for Reagan-appointed Justice Sandra Day O’Connor. O’Connor notes that Srinivasan is “not anybody who’s been politically active” and Wilkinson called him “balanced,” “moderate,” and “deeply knowledgeable about law.” But, of course, “balanced, moderate and deeply knowledgeable about the law” doesn’t describe the sort of judge who would give the GOP power to eliminate agencies they don’t like, or who think that all Wall Street regulation is suspect. And Sen. Chuck Grassley (R-IA), the top Republican on the Senate Judiciary Committee, appears determined to keep him off the federal bench.
Todd Ruger at Legal Times has more detail on the fig leaf Grassley appears to be using to cover up his obstruction of Srinivasan, but the short of it is this: Last year, the Supreme Court was expected to hear a case that could have eviscerated fair housing law, until the case unexpectedly settled before the justices could resolve it. Grassley thinks someone at the Department of Justice might have encouraged this settlement by not participating in other claims against the same defendant, but he has no proof this happened. He also admits that there’s no evidence that Srinivasan, who played a minor role in the case, “did anything inappropriate or improper.” Nevertheless, Grassley somehow believes that this confused morass of conspiracy theories and speculation justified blocking Srinivasan’s nomination from moving forward last week.
If your head is spinning after reading the previous paragraph, you’re not alone. Indeed, it’s unlikely that even Chuck Grassley believes that there’s a valid reason to block Srinivasan’s nomination. It’s far more likely that Grassley and his fellow Republicans simply view Srinivasan as a threat to their lockhold on the D.C. Circuit — and that they are willing to do everything in their power to maintain that grip.