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Court Packing Vs. Court Filling | Commentary

Rather than Obama engaging in “court packing,” Grassley is now trying to engage in “court shrinking” by introducing legislation to reduce the number of judges on the D.C. Circuit. This effort is a shockingly transparent effort to deny the president his constitutional right to nominate federal judges to fill vacant seats. Grassley’s action also ignores the unique and important nature of the D.C. Circuit, which enjoys special jurisdiction to hear cases that go to the very function of the federal government. Chief Justice Roberts wrote an article in 2006, titled “What Makes the D.C. Circuit Different? A Historical View,” in which he identifies all the distinctions between the D.C. Circuit and other appellate courts.

Moreover, we have heard this tune before — in fact, just one administration ago. At the end of the Clinton administration, there were five vacancies on the 15-member 4th Circuit Court of Appeals. That federal court includes the states of North Carolina, South Carolina, Maryland, Virginia and West Virginia. Sens. Jesse Helms, R-N.C., Strom Thurmond, R-S.C., and others indicated that the 4th Circuit did not need any more judges. Five months into his administration, President George W. Bush nominated his slate of three judges to the 4th Circuit. Just two months later, the first nominee was confirmed by a vote of 93-1.

The empty chairs in the D.C. Circuit courtroom symbolize a gaping hole in the functioning of our democracy. They represent a federal court that is being held hostage to the political machinations of Republican senators who seek to block the president’s authority — set out in the Constitution — to nominate judges to sit on the federal courts. Instead of stalling tactics and rewriting history, the Senate needs to promptly fill the seats with the extraordinary individuals Obama nominated.

Leslie M. Proll is the director of the Washington office of the NAACP Legal Defense and Educational Fund Inc.

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