Democrats obscuring judicial facts

President Obama hasnamed three nomineesto the U.S. Court of Appeals for the District of Columbia Circuit, the nation's second most important federal court. The decision has captured attention because the court issues some of the most significant cases, including many involving the constitutional validity of actions taken by the president and federal agencies. That role has recently subjected the court to intense criticism from Democrats, who are angry that the court (now balanced 4-4) has been enforcing constitutional limits on President Obama's agenda.

In August, the court struck down an unlawful EPA regulation that would have forced energy companies to lay off workers and increase electricity costs. More recently, the court ruled that President Obama's attempt to circumvent the U.S. Senate with his appointments to the National Labor Relations Board "eviscerate[d] the Constitution's separation of powers" and "demolish[ed] checks and balances." Unhappy with these rulings, Democrats are now angling to fill the D.C. Circuit with ideological cronies if that is what it takes to rubber-stamp President Obama's agenda.

As Constitutional Accountability Center President Doug Kendall put it: "With legislative priorities gridlocked in Congress, the president's best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit." At a recent Democratic Party gathering, New York Sen. Chuck Schumer recounted the major cases the Obama administration had lost in the D.C. Circuit, and echoed the importance of nominating more liberal judges to the court: "We will fill up the D.C. Circuit one way or another," he promised.

The thing is, virtually everyone agrees that the D.C. Circuit -- with the lowest number of appeals filed annually -- does not need more judges because it is already significantly under-worked. According to legal expert Ed Whelan, the D.C. Circuit's total pending appeals dropped around 10% since 2005, falling from 1,463 to 1,315 from September 2005 to September 2012, while pending appeals per active judge increased by only one case. The Circuit's judges, including the contributions of senior judges, now have around two-thirds the workload of their colleagues in 1995-96.

Senate Democrats once agreed. In 2006, every Democratic Senate Judiciary Committee member, including Sen. Schumer and then-Sen. Joe Biden, wrote a letter opposing the nomination of Peter Keisler because the court was underworked. Keisler waited 900 days for a vote that never came. Miguel Estrada, another D.C. Circuit nominee, was filibustered seven times by Senate Democrats because, as Illinois Sen. Dick Durbin's office put it, he "has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment."

http://www.usatoday.com/story/opinion/2013/06/07/dc-circuit-court-nominees-column/2393569/