Working the Refs By Taking Them Off the Court

Might as well go for a negativity Trifecta this morning: another bad sign of the underlying partisan atmosphere in Washington involves this underreported development, via Think Progress’ Ian Millhiser. Here’s a relatively innocuous-sounding statement by the Senate Judiciary Committee’s ranking Republican, Chuck Grassley, during confirmation hearings for D.C. Circuit nominee Sri Srinivasan:

[T]oday I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

If adopted, this legislation would be a significant step towards rectifying the extreme disparities between the D.C. Circuit and the Second and Eleventh circuits.

Yeah, right. What it would actually accomplish, as Millhiser explains, is to prevent Obama from reversing a conservative majority on the D.C. Circuit, an enormously powerful judicial panel when it comes to a vast array of regulatory issues:

[T]he United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently 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.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Looks like Grassley–or whatever Federalism Society alum who is advising him–understands that the regulatory and legal arenas are where the actual policy legacy of the Obama administration will be determined, often by split decisions in the D.C. Circuit or its “graduate school,” the U.S. Supreme Court (four current Justices first served on the D.C. Circuit). The Iowan was not among the Republican senators eating steak with the president last night. That’s too bad: questioning his court-tampering initiative might have provided some stimulating dinner conversation.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.