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Circuit Breaker

A seat on “the second highest court in the land” nearly became a consolation prize.

1:42 PM, May 26, 2010 • By ADAM J. WHITE
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Circuit Breaker

President Obama and former White House counsel Greg Craig.

In The Promise, a sympathetic account of the Obama administration’s first year, Jonathan Alter reports that the president attempted to entice troubled White House Counsel Greg Craig to gracefully exit the White House by offering him an appointment to the U.S. Court of Appeals for the D.C. Circuit.  According to Alter, “the White House was anxious that the offer not leak, for fear it would look as if Obama were offering judgeships as consolation prizes.”  Deservedly so.

True, President Obama’s willingness to use presidential appointments to end political trouble is hardly news.  Rep. Joe Sestak, for example, disclosed the president’s attempt to use an executive branch appointment to dissuade him from pursuing his successful primary challenge to the president’s favored incumbent, Sen. Arlen Specter. 

But for the president to make tactical use of a D.C. Circuit lifetime appointment is even more scandalous, because the D.C. Circuit occupies a singular role in our nation’s judicial system.  Few have summarized the court’s special role better than Obama did in 2005:

After the Supreme Court … the D.C. Circuit is widely viewed as the second highest court in the land. … Under its jurisdiction fall laws relating to all sorts of Federal agencies and regulations. This is a special court. It has jurisdiction that other appeals courts do not have. The judges on this court are entrusted with the power to make decisions affecting the health of the environment, the amount of money we allow in politics, the right of workers to bargain for fair wages and find freedom from discrimination, and the Social Security that our seniors will receive. It is because of this power that we deserve to give the American people a qualified judicial nominee to serve on the D.C. Circuit.

Senator Obama was correct.  Among the nation’s federal courts of appeals, the D.C. Circuit is first among equals.  It regularly reviews landmark regulatory actions involving energy infrastructure, the environment, labor relations, and communications regulation (such as a recent decision affecting “net neutrality” proposals).  In such cases it often has the final word: the Supreme Court rarely reviews its decision – only one case in the 2008-09 term, and five in the 2007-08 term – and the other federal courts often defer to its precedents. 

The D.C. Circuit also hears critically important national security cases, such as the constitutional claims of prisoners detained in the global war on terror.  Just last week, for example, the court overturned a lower court’s ruling that terrorist detainees at the the Bagram Air Force Base in Afghanistan are entited to challenge their detention by filing habeas petitions in federal court.

For evidence of the D.C. Circuit’s prestige, look no further than the current Supreme Court.  Four of the Supreme Court’s nine justices – Chief Justice Roberts, and Justices Scalia, Thomas, and Ginsburg – were promoted directly from the D.C. Circuit.

To his credit, Craig declined President Obama’s offer, and thus avoided repeating the disaster that followed when another president used a D.C. Circuit seat as a consolation prize.  In 1943, FDR ended Thurman Arnold’s politically problematic tenure as the Justice Department’s antitrust enforcer by appointing him to the D.C. Circuit.  Judge Arnold, whose esteemed status among his fellow lawyers was comparable to that of the respected but controversial Craig, lasted only two forgettable years on the bench before resigning and returning to private practice.  Afterward, he lamented having accepted the job, privately calling the work “dull,” and publicly writing that quitting the bench and returning to the lawyer’s podium allowed him to “make my living talking to a bunch of damned fools rather than listening to a bunch of damn fools.”

President Obama’s tactical use of a D.C. Circuit appointment is all the more remarkable given that the D.C. Circuit is not in obvious need of another judge.  The court’s thirteen members, while busy, manage the court’s docket well.  While the court has two nominal “vacancies,” they are ably filled by court’s four “senior judges” who actively hear cases.  In fact, the court’s docket is so well managed that in 2008 the president and Congress transferred one of its “vacant” seats to the Ninth Circuit, and the Senate declined even to consider President Bush’s last nomination to the court.  By contrast, the Justice Department’s Office of Legal Policy describes the Second, Fourth, Fifth, and Ninth Circuit’s numerous vacancies as “emergencies.”

In short, any appointment to the D.C. Circuit would satisfy no need other than the president’s desire to put his own man on the court.  And his attempt to use a D.C. Circuit seat as a political booby prize casts a long shadow across his past, present, and future judicial nominations.

Adam J. White is a lawyer in Washington, D.C.

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