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Blue The Nation | August 27, 2014

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Conservatives Seek to Dismantle Federal Court System

Conservatives Seek to Dismantle Federal Court System
Jonathan Nathan

There’s a new conservative talking point that’s begun to make the rounds. Tom Tomorrow expertly pointed out, in a This Modern World strip that I’m never going to be able to track down, the way that conservative talking heads and Republican politicians can skillfully control a narrative by repeating the same thing over and over again until the rest of the media and politicosphere just agree to believe it. It’s something Democrats have repeatedly demonstrated they don’t know how to do. There’s been a lot of scandalmongering of late, so you’d be forgiven for not having picked up on the GOP’s latest attempt to utilize the strategy on an actual issue, but don’t think for a moment that you’re not going to be hearing more about this as the year grinds on.

Led by Iowa Republican Senator and possible psychopath Chuck Grassley, Republicans and conservative media personalities are now claiming that the U.S. Court of Appeals “doesn’t need” to fill its gaping vacancies. These vacancies have gone unfilled for quite some time now due to Republican obstructionism. The argument has often been that “both sides do it,” pointing to the filibusters of George W. Bush’s judicial nominees by Democrats. But it’s a false equivalence. The Democrats generally only filibustered controversial, arch-conservative nominees to sensitive seats at the appellate level or higher, and filibustered only 35.7% of Bush’s nominees. Today, the Republicans are filibustering even non-controversial nominees to non-sensitive positions like District Courts, and they’ve done it to 63.6% of Obama’s nominees.

Furthermore, the Democrats never had a comprehensive, overarching strategy of hamstringing the Bush Administration. President Bush seemed quite capable of getting done whatever he wanted to get done, Democratic opposition be damned, because the Democrats were not dedicated to destroying his Presidency. The Republicans, on the other hand, have a long and well-documented history of trying to shut down the government any way they can under President Obama. And they don’t just want to delay or block Obama’s nominees; they want to completely reframe the entire way we think about the American legal system.

Grassley, egged on by the Wall Street Journal‘s editorial page, is actually proposing to reduce the number of seats on the D.C. Circuit Court. The Senator and his pet newspaper are, absurdly, arguing that the Court “doesn’t need” a full slate of judges, because it is, in the Journal‘s words, “the most underworked court in the federal system.” In reality, no legal expert agrees with the assessment. Because the D.C. Circuit Court has exclusive jurisdiction over many areas of federal law, its low caseload by raw numbers doesn’t fully illuminate its actual workload, which is extremely complex and time-consuming. Patricia M. Waid, the Circuit’s former Chief Judge, explained, “The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

The Journal and the Senator aren’t stopping at simply erroneous claims, however. They can’t, because even conservative judicial luminaries like John Roberts, an anti-government zealot with all the reasons in the world to support the Grassley agenda, has publicly put the lie to their notions. They’re now even accusing President Obama of “court packing”–just because he wants to fill out the vacancies on an overworked Circuit Court! That’s like accusing a starving man, who hasn’t eaten in days, of gluttony because he has a salad.


Predictably, Grassley approved all of George W. Bush’s nominees to the exact same Circuit Court years ago, and did so with a smile. Not only was it the same Court, he actually approved nominees to two of the seats he’s proposing to eliminate today! And the caseload was actually lower back then! This is so damn transparent and obvious it beggars belief. And the Republicans will continue to get away with it.