The D.C. Circuit Court of Appeals, the nation’s second highest federal bench, has 11 seats. For the last five years, four of those seats have been vacant, which has not only put a strain on the court, but left Republican appointees as the clear majority, pushing the bench to the right.
And so, yesterday offered something of a breakthrough when the Senate unanimously approved Sri Srinivasan, President Obama’s first confirmed judge to the D.C. Circuit. That leaves three vacancies on the bench, and the White House intends to send nominees for those slots to the Senate soon.
For Sen. Chuck Grassley (R-Iowa), that’s a problem. Indeed, Dylan Matthews noted yesterday that Grassley believes rascally Democrats and the Obama administration are trying to “pack the court” through a “court-packing” scheme. Grassley was reading carefully from a prepared text, suggesting the Iowa Republican was quite serious about the argument – he repeated it five times.
It fell to Sen. Sheldon Whitehouse (D-R.I.), Grassley’s colleague on the Senate Judiciary Committee, to gently explain that Grassley has no idea what he’s talking about. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, but not seriously pursued.
What we’re talking about in 2013 is very different. There’s a vacancy on the federal bench; the president chooses a nominee to fill that vacancy; the Senate Judiciary Committee scrutinizes that nominee and sends him or her to the floor; and then the Senate’s full membership has an opportunity to vote “yea” or “nay” on confirmation.
Chuck Grassley sees this as some kind of underhanded Democratic scheme. The rest of us should consider it basic American governance.
Postscript: I should note that if Senate Republicans reclaim the majority after the 2014 midterms, Grassley would become chairman of the Senate Judiciary Committee, despite his apparent confusion on these issues.