Senate Majority Leader Harry Reid said Wednesday that he will push to confirm more judges to the federal appeals court in Washington after that court ruled this year that President Obama’s broad use of recess appointment powers was unconstitutional.
“You have a majority in that court that is wreaking havoc in the country. For the first time in 230 years, they ruled the president can’t make a recess appointment, so, yes there is a crisis,” Mr. Reid, Nevada Democrat, said on the Senate floor as he begged for quick action on more of the president’s judicial nominees.
The Senate has been confirming judges this year at a rapid pace — 19 so far, compared with four during the same period in President George W. Bush’s second term — but Mr. Reid said there is plenty of makeup work to do from the previous term, when Mr. Obama’s judges were delayed longer than any other president’s in the past 30 years.
Senate Minority Leader Mitch McConnell, Kentucky Republican, said Mr. Reid’s criticism of the recess appointment decision showed that Democrats were trying to pack the U.S. Court of Appeals for the D.C. Circuit with judges more ideologically in line with their beliefs.
“The whole purpose here is to stack the court,” Mr. McConnell said. “It sounds to me like the majority leader’s finally kind of fessed up to what the problem is. The reason it needs to be done this week rather than next week is because he doesn’t like what the D.C. circuit’s doing. So it doesn’t have anything to do with caseload.”
Wednesday’s fight erupted over how quickly to confirm an eighth judge to the D.C. court. Mr. Reid has slated a vote for this week to head off any chance of a filibuster of Sri Srinivasan, even though Republican leaders have said they don’t intend to mount a filibuster, and most probably will vote to confirm the judge.
Mr. Reid said there are still three vacancies on the 11-member court and more needs to be done to balance it ideologically after some of its recent rulings.
The court now has four members appointed by Republican presidents and three by Democrats. If Mr. Srinivasan is confirmed, it would bring the court into a 4-4 balance. Six other judges have senior status, and five of them were nominated by Republican presidents.
The only case Mr. Reid criticized in his floor speech was the court’s National Labor Relations Board recess appointment ruling.
Mr. Reid said the court ruled that Mr. Obama cannot make recess appointments, though the court’s ruling was actually more narrow. The three-judge panel ruled that the recess appointment powers apply only when the Senate has adjourned for the year — and only to vacancies that arise during that time.
That still leaves presidents with some recess powers, though they would be much more limited than presidents have claimed over the past century.
Another federal appeals court in Philadelphia last week ruled in a 2-1 decision that appointments apply only when the Senate has adjourned for the year.
Mr. Reid did not criticize that court in his remarks, instead reserving his fire for the D.C. circuit, which unanimously ruled that Mr. Obama’s recess appointments to the National Labor Relations Board violated the Constitution.
“The country is concerned about the decisions coming out of that court,” Mr. Reid said.
The Obama administration has appealed the D.C. court ruling to the Supreme Court.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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