Earlier this month, Senate Minority Leader Mitch McConnell (R-KY) strongly hinted he would filibuster President Obama’s three nominees to the United States Court of Appeals for the District of Columbia Circuit, the second most powerful court in the country. And Sen. Chuck Grassley (R-IA) even introduced legislation to strip three seats from this court in order to prevent Obama from filling them. Earlier today, however, Sen. John McCain (R-AZ) indicated he would not go along with such efforts to keep this powerful court in Republican hands. “Elections have consequences” McCain told a group of reporters, after saying he’s “always believed” that the judicial nominees deserve an up-or-down vote unless there are extraordinary circumstances justifying a filibuster.
With the recent confirmation of Judge Sri Srinivasan, the DC Circuit’s active judges are evenly split between Democrats and Republicans. Five of the court’s six senior judges — partially retired judges who hear reduced caseloads — are Republicans, however. So the court is currently dominated by conservatives. Should Obama’s nominees be confirmed, the Democratic active judges will be able to overrule any decision by a conservative panel by agreeing to hear cases “en banc” — a process which allows all fully active judges to weigh in on a case. With Obama’s three nominees, Democratic appointees would enjoy a 7-4 majority on an en banc panel.
In the interim, however, the court’s Republican judges have wielded their dominance to write their own policy preferences into the law. Two George W. Bush appointees struck down clean air 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.” Another panel of three conservatives handed down a decision earlier this year that would make much of American labor law completely unenforceable. A third opinion invalidated federal rules requiring employers to inform workers of their rights under federal labor law, and they did so in an opinion that was so broadly reasoned it could potentially invalidate laws requiring everything from fuel efficiency labels on new cars to nutritional labels on food.