Late last week, Chief Judge David Sentelle of the United States Court of Appeals for the D.C. Circuit announced that he will take partial retirement, effective this February. This alone is an occasion for celebration. Sentelle is among the most ideological judges in the country. Just last April, he joined an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. If President Obama’s reelection accomplishes nothing more than allowing Sentelle’s retrograde vision of the Constitution to fade from the federal bench, then Obama will do more to preserve and protect the Constitution than many presidents can hope to accomplish in two terms.
Just as importantly, Sentelle’s announcement gives President Obama an opportunity to transform a court that is second only to the Supreme Court in its power and importance. Sentelle’s partial retirement opens up the fourth vacancy on the D.C. Circuit, meaning that Obama could change this court — where Republican appointees currently enjoy a 5–3 advantage among active judges — into a 7–4 incubator for progressive legal thought.
The D.C. Circuit’s conservatives milked their current majority to continue the policies of George W. Bush long after the American people rejected his ideology. Unlike most federal courts of appeal, whose dockets are dominated by routine criminal, immigration and other cases that often have little impact on the nation at large, the D.C. Circuit’s bread and butter are major national security cases and challenges to major national regulations. Indeed, many of the Obama Administration’s efforts at environmental protection have been choked in their infancy by the D.C. Circuit’s powerful conservative bloc.
Senate Republicans, however, are unlikely to take Obama’s efforts to built a D.C. Circuit that is tolerant of democracy lying down. To the contrary, they’ve blocked Obama’s nomination of an outstanding attorney named Caitlin Halligan to this court for more than two years, despite barely being able to articulate a reason to oppose her. It is unlikely that Obama’s other nominee, to the D.C. Circuit, Principal Deputy Solicitor General Sri Srinivasan, or whoever the president names to the other two vacancies, will receive better treatment.
In other words, Sentelle’s announcement adds yet another reason why it is essential for Senate Democrats to push robust filibuster reform this January which prevents the minority from blocking President Obama’s nominees.