David Fontana of George Washington School of Law has a piece on the Huffington Post suggesting that President Obama can pick up the pace of judicial confirmations if he “nominate[s] progressives who happen to have been appointed or hired by Republicans” and “create[s] nomination hearings that have more human drama and less legal theory.”
The D.C. Circuit may offer the best opportunity to test Fontana’s theory. The court has three empty seats, though only two may be politically viable. The Senate failed to confirm either of President Obama’s first term nominees, making him “the first president in at least half a century to finish a full term without making an appointment” to the court. Caitlin Halligan, who was perceived as overly partisan, failed to get enough votes to break the filibuster, and Srikanth “Sri” Srinivasan was nominated too late to have a realistic shot at confirmation during the President’s first term.
Srinivasan has both of the ingredients Fontana calls for in a judicial nominee. First, he’s had plenty of conservative bosses: He clerked for Judge J. Harvie Wilkinson and Justice Sandra Day O’Connor and won accolades in the Solicitor General’s office during the George W. Bush administration. Srinivasan’s biography isn’t short on human interest either: he immigrated from India with his parents and played high school basketball in Kansas before going on to Stanford for college and law school.
If he were to be confirmed, Srinivasan would not be the first D.C. Circuit judge to have survived a stalled nomination.
Although it may be no substitute for individual human drama, the D.C. Circuit also has the dubious distinction of being so short-handed that, with rare exceptions, it can almost never go en banc. The effects of this disability are more damaging on the D.C. Circuit than they would be on any other court of appeals. The D.C. Circuit hears a disproportionate share of the nation’s administrative law cases, and to the extent other circuits hear those cases they are cognizant of (and often deferential to) the D.C. Circuit’s expertise. That means there are relatively few circuit splits on administrative law questions for the Supreme Court to resolve, so the D.C. Circuit often ends up giving the final word in this critical area. It’s especially important then that the court speak with one voice in its administrative law docket. That’s something it can’t do effectively if en banc rehearing is not a viable option.
Then-Judge Kenneth Starr made a similar point in an opinion concurring in the denial of rehearing en banc in 1989:
With the Supreme Court’s plenary docket brim to overflowing, the appellate en banc procedure duly authorized by Congress provides a reasonable and sensible way of assuring that conflicts are not lightly or casually created. This alternative seems all the more applicable to our court, which ranks in the bottom tier of the respective courts of appeals in the percentage of cases that it sees fit to consider en banc. Indeed, our comparative reluctance to repair to the en banc procedure is doubly odd inasmuch as Congress has seen fit to confer exclusive jurisdiction on our court in a number of critical arenas of federal law. Thus, quite apart from conflict-generating decisions (which are of obvious importance to the uniformity of federal decisional law), of equally high concern to our court should be panel decisions raising important issues in the body of administrative law, the area in which our daily labors so completely immerse us. In view of our unique jurisdictional mandate and location at the seat of government, we are well advised to be vigilant in keeping our own house fully in order. In short, one would more naturally think that we would rank toward the top of the circuits, rather than leisurely roosting down near the bottom, in our willingness to take a more considered, second look at the important cases that so regularly come before us.
From Fontana’s blog post:
When the Senate held hearings about [Ledbetter v. Goodyear Tire], Lilly Ledbetter, the gender discrimination victim who brought the case that led to the Court’s eventual decision, testified about the human impact of the decision. . . . Dry law was made into human drama because of a compelling, human protagonist.
By contrast, judicial nomination hearings tend to have all of the human drama of paint drying. . . . [B]ut at bottom the political dynamics [of judicial confirmation hearings] are not all that different from other things that the Senate does. And a Senate faced with more bipartisan nominees, and nominees framed in human terms, could help get the Senate moving on judicial nominees in Obama’s second term.
[Update: This post has been updated to reflect that Srinivasan’s nomination is still pending.]