WASHINGTON — Democrats prepared to assume greater influence over the nation's second most powerful court this week in a display of raw political muscle sure to have legal, political and perhaps policy repercussions for decades to come.
The Senate stood poised to confirm Patricia Millett, one of President Obama's three pending nominees to the U.S. Court of Appeals for the District of Columbia Circuit, on Tuesday morning. By next week, she could be joined by his other two nominees, Nina Pillard and Robert Wilkins, giving the court seven judges chosen by Democratic presidents to four selected by Republicans.
Senate Republicans' refusal to consider any of those nominees, along with other battles over judicial and executive branch nominations, led Democrats to change the chamber's rules last month. As a result, a majority of senators can force a vote on the nominations, rather than the 60-vote super-majority that gave the GOP veto power. Democrats hold a 53-45 edge, and two independents side with them.
At the center of the dispute is this little known but potent court, symbolically located between the White House and Capitol and responsible for settling most disputes between those two branches of government.
To say the D.C. Circuit appeals court is a frequent stepping-stone to the Supreme Court is to trivialize its role in American life. Yes, it supplies justices to the nation's highest court, including four serving there now — Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas. But its major influence comes from its sweeping jurisdiction: environmental, health and labor regulations, financial institutions, national security and more.
Obama and Roberts don't agree on much, but they have the same respect for the D.C. circuit court. "This is a special court," Obama, then a senator, said in 2005 while opposing one of the current judges there, Janice Rogers Brown. "It has jurisdiction that other appeals courts do not have."
A year later, Roberts wrote in the Virginia Law Review that the court has "special responsibility to review legal challenges to the conduct of the national government."
While the nation's 11 regional circuit courts preside over distinct sections of the country, the D.C. circuit rules nationwide. While the other circuits generally hear cases on appeal from federal trial courts, the D.C. circuit can be the first and last word. And while it's not unusual for circuit court rulings to get reversed at the Supreme Court, the justices often give the D.C. Circuit a wider berth.
"The decisions by the Congress to carve out certain areas of federal law as the special preserve of the D.C. Circuit and the infrequency with which the Supreme Court considers, let alone reverses, the Circuit's decisions combine to give the court the final say … over numerous laws and rules affecting the entire nation," a study published last week in the Cornell Journal of Law and Public Policy says.
In recent years, the court — divided between Democratic and Republican nominees, but with six semi-retired "senior" judges, five of whom were named by Republican presidents — has been a thorn in the side of Democrats.
Two of its most controversial recent decisions are before the Supreme Court this term. On Tuesday, the justices will consider its ruling that struck down the Environmental Protection Agency's rule requiring "upwind" states to slash emissions into "downwind" states. Next month, its decision striking down Obama's appointments of several executive branch officials during a Senate recess will be reviewed.
Carrie Severino, a former D.C. Circuit and Supreme Court law clerk who is chief counsel at the conservative Judicial Crisis Network, defines the court's job as "reining in when the agencies exceed their authority."
The circuit court also has been something of a dead end for suspected terrorists confined at the Guantanamo Bay military prison who seek to appeal their detention.
But the court doesn't always tilt to the right. It was one of several courts weighing in on Obama's health care law in 2011, ruling that the mandate to purchase insurance was constitutional.
Obama was unable to get his first nominee to the D.C. circuit, New York's Caitlin Halligan, through a Republican filibuster. He eventually filled the eighth seat — and evened the score between Republican and Democratic nominees — with Sri Srinivasan, a former principal deputy solicitor general with bipartisan credentials who was confirmed unanimously.
Rather than contesting the qualifications of Obama's latest nominees — Millett, 50, and Pillard, 52, are veterans of the solicitor general's office with extensive Supreme Court experience, while Wilkins, 50, is a federal district court judge — Republicans claim the court doesn't need to fill its three open seats.
Some outside experts agree. "The court's plugging along just fine," says Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University School of Law, who served as a law clerk at the court.
That argument hinges on the quantity and quality of cases handled by the court. In 2009, full-time judges there participated in an average of 168 cases that were decided on their merits, about one-third the number handled by other circuit court judges. But the D.C. court's cases often involve complex constitutional challenges to federal programs.
The Judicial Conference of the United States, which oversees federal court resources, views the D.C. Circuit court's caseload as steady and sees no reason to consider changes in the number of seats, 10th Circuit Court of Appeals Judge Timothy Tymkovich told Congress in September.
Patricia Wald, the first woman to serve on the D.C. Circuit court and a former chief judge, agrees. She wrote this year that the court "hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives."