The United States Court of Appeals for the District of Columbia Circuit is the second-most powerful court in the country, owing to its steady stream of major regulatory and national security cases. It is also a place where good laws go to die. Two George W. Bush appointees to this powerful court undid more than two decades of effort to control air pollution, striking down regulations that would have prevented “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.” A DC Circuit opinion will make much of American labor law and Wall Street regulation completely unenforceable if it is upheld by the Supreme Court. Two DC Circuit judges even claimed that all labor, business or Wall Street regulation is constitutional suspect.
But, of course, these outcomes are only possible if the court remains firmly in conservative hands — and the right’s current grip on the DC Circuit is now in doubt. Four seats are currently vacant on the DC Circuit, and conservatives only enjoy a 4-3 advantage among active judges. So if President Obama succeeds in appointing just two people to this court, one of the most effective vehicles for sabotaging progressive laws goes away. This fact likely accounts for much of the reason why Senate Republicans filibustered Obama’s first nomination to this court, that of Caitlin Halligan, to death — despite barely being able to articulate a reason to oppose her. If Halligan had been confirmed, the DC Circuit’s ability to push a conservative agenda would have been significantly diminished.
This week, Obama’s second nominee to this court, Deputy Solicitor General Sri Srinivasan, will receive a hearing before the Senate Judiciary Committee. And, if the Halligan nomination was far from an aggressive move by the President, the Srinivasan nomination is practically an act of trolling by President Obama. Srinivasan clerked for Judge J. Harvie Wilkinson and Justice Sandra Day O’Connor, both Reagan appointees. And, while Srinivasan’s career includes a number of years in the United States Solicitor General’s office even before he took over as the office’s second-in-command in 2011, he also spent much of it representing corporate clients at a large corporate law firm. His nomination to the DC Circuit was recently endorsed by Republican legal luminaries like Paul Clement, Bush v. Gore attorney Ted Olson, and anti-Clinton inquisitor Ken Starr, and his clerkships and many years of Supreme Court litigation leave no doubt that he is well-qualified for the federal bench. I have personally witnessed Srinivasan’s arguing before the Supreme Court, and can testify that, even among the rarefied company of frequent Supreme Court advocates, Srinivasan is a standout because of his clear and easy manner even when he’s being grilled by hostile justices.
So Srinivasan is uber-qualified and possesses strong moderate — even conservative — credentials. If Senate Republicans choose to filibuster him, they will remove any remaining doubt that they are not acting in good faith, and that any nominee to the left of Sam Alito is in store for a filibuster.
There are two related implications to such bad faith filibusters. The first is that, if Senate Republicans are willing to act in bad faith to retain conservative control over the second-most powerful court in the country, imagine how far they would go to keep control over the Supreme Court. If Srinivasan is filibustered, it is likely that no Democratic nominee to the nation’s top courts will ever be confirmed so long as the GOP maintains it’s ability to filibuster.
The second implication is that, without the ability to confirm Democratic nominees to the nation’s highest courts, it doesn’t really matter who gets elected to the White House in the long run. One of the most important political stories of the last four years is the GOP’s wholesale abandonment of judicial restraint in favor of simply pushing through the judiciary anything they cannot pass through the legislature. If only Republicans can confirm judges to the nation’s highest courts, the long term consequence will be Republican rule by judiciary, regardless of who occupies the White House or Congress.
That is why the outcome of Srinivasan’s confirmation process may be the most important story in Washington, because it will reveal whether a balanced judiciary made up of nominees from both major parties — at least at its highest levels — still remains possible in the country. If Republicans filibuster Srinivasan, they will be sending a clear message that the answer is “no.”
Unless, of course, Senate Democrats finally pull the trigger on serious filibuster reform.