Much has been written recently about the four vacant seats (out of eleven) on the D.C. Circuit and the Republican filibuster on all of Obama’s nominations to the court. However, most writers have followed Obama’s lead in treating the vacancies as creating a problem of “timely access to justice,” Democrats have become so accustomed to Republican efforts to weaken legislation or federal agencies through the filibuster of key personnel that they are unable to notice when something different is happening. As the D.C. Circuit’s current constitution and body of decisions show, Republicans have effectively transformed the court, which now provides a second shot for Republicans to overturn and amend legislation and regulations, into an alternate route to defeat government regulations. What we’re witnessing is a spectacular power grab by conservative legislators, a twenty-first-century version of Marbury v. Madison in slow motion.
Some have argued that the D.C. Circuit’s character is different as a matter of historical accident—lawyers simply treat it as the proper venue for challenging (or supporting) executive power. But there are important structural qualities that distinguish it from other federal courts. For one, it is among the most politicized of the already-partisan federal courts; the D.C. Circuit is often regarded as a stepping stone for the Supreme Court, with four of the nine current justices having served there. Yet the D.C. Circuit is not just a springboard to the big leagues. It is also accorded a special privilege that other circuits are not: it has jurisdiction over any case involving a federal agency. This means that if a company is fined by the EPA in San Francisco, for example, it can choose to appeal its case in California or with the D.C. Circuit. In the term ending in 2012, over 40 percent of the D.C. Circuit’s cases involved a federal agency, compared to less than 14 percent for the remaining circuits. As a result, the D.C. Circuit has a disproportionate influence on federal regulatory power. Whether a regulation concerns banking institutions (through the Securities and Exchange Commission), labor relations (through the National Labor Relations Board), power and utility companies (through the Department of Energy), the D.C. Circuit has a hand in shaping it. This undeniable fact should cause concern for anyone who still be believes in a traditional separation of powers.
On its face, the D.C. Circuit, which hears cases in three-judge panels, appears roughly split between four Republicans and three Democrats, with four vacancies. However, this simple count ignores a key feature of the federal judiciary: senior judgeships. Many judges do not retire, but instead choose senior status, which makes their seat officially vacant but places them on part-time work.
On the D.C. Circuit, there are six senior judges, which is almost the number of active judges, with five having been appointed by Republicans. In all the cases decided in 2013, almost 70 percent of the three-judge panels included at least one senior judge. As a result, almost 80 percent of the panels in 2013 were composed of exclusively or a majority of Republicans.
by Moshe Z. Marvit, Dissent | Read more:
Image: Wikimedia Commons, 2008
