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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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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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