Filibuster Reform Is Not the Big Story for the DC Circuit Court

The Times has a piece on the recent filibustering of Caitlin Halligan’s nomination to a seat on the DC Circuit Court. It’s not a bad piece, but rather buries the lead in my opinion. The frame is all about the failed fight for filibuster reform, which if you remember was killed by tremulous centrist Democrats, and strategies to get Obama’s judges through Congress.

All to the good, and a conversation that needs to happen. But the real issue comes in a quick aside in the fifth paragraph:

The District of Columbia appeals court is considered a route to the Supreme Court. In fact, Ms. Halligan was nominated to fill the vacancy left by Judge John G. Roberts Jr. when he left to join the Supreme Court in September 2005. The court decides many politically charged cases involving federal law and regulations, with one of its recent decisions overturning Mr. Obama’s recess appointments to the National Labor Relations Board.

This is the critical issue when it comes to the DC Circuit Court. They have jurisdiction over the regulatory agencies, and the current conservative majority has become the key instrument in obstructing regulatory reform, especially Dodd-Frank. This was the focus of Haley Edwards’ blockbuster story in our latest issue:

Part of the issue here is that the D.C. Circuit is packed high with conservative judges. Eight out of eleven on that bench were appointed by Republicans; despite four vacancies, Obama’s nominations have been stymied consistently by Republicans in Congress. The three-judge panel that decided Business Roundtable included two Reagan appointees, Judge Douglas Ginsburg and Chief Judge David Sentelle, a Jesse Helms protégé. (That’s the same Sentelle, by the way, who headed the panel that fired Whitewater independent counsel Robert Fiske, a moderate Republican, and replaced him with Kenneth Starr.) The third judge was George W. Bush appointee and consummate Ayn Randian Janice Rogers Brown. All three have made a bit of a name for themselves over the years as conservative activists, unafraid to mold precedent to fit their ideological ends. Their decision in Business Roundtable didn’t break that mold.

And the behavior of these conservative jurists has become aggressively hackish:

In one section, for instance, the judges ask why the SEC would have dismissed public comments suggesting that proxy access could exact a significant economic cost to corporations. Judge Ginsburg writes, “One commenter, for example, submitted an empirical study showing that ‘when dissident directors win board seats, those firms underperform peers by 19 to 40% over the two years following the proxy contest.’ ” But hold the phone. Or, better yet: WTF? Ginsburg fails to note here that the “one commenter” in question is one of the plaintiffs, the Business Roundtable. And as for that “empirical study”? It was conducted by an economic consulting group hired by that same plaintiff. In the rest of the decision, Ginsburg appears to ignore the precedent set by the foundational 1984 Chevron case, which, among other things, stressed that judges must afford “deference” to an agency’s interpretation of a statute, especially when it’s “evaluating scientific data within its technical expertise.”

And let us not forget that this is the same court that just completely eviscerated the President’s power to make recess appointments (pending a Supreme Court decision). One can’t say for sure that the conservatives on this court deliberately attacked this power as a preemptive strike against any Obama recess appointments to the DC Circuit, so as to preserve their own ability to gut federal regulations on any grounds they choose, but it certainly seems plausible.

The upshot of all this is that if Dodd Frank and the rest of President Obama’s big first term achievements are to avoid being pecked to death, Democrats must fill those empty seats on the DC Circuit. That is the background reality that informs all this discussion about filibuster reform and the federal judiciary.

Ryan Cooper

Ryan Cooper, a contributing editor of the Washington Monthly, is currently the Washington correspondent for The Week.