From our "damned if you do, and damned if you don't" files: Earlier this month, at a Senate Judiciary Committee hearing, Senator Cornyn complained that the White House had not nominated judges to fill several vacancies in Texas, finally admitting that the Senators from Texas had yet to recommend anyone to fill those vacancies, the traditional method for making appointments. Here's a tape of that portion of the hearing:
But what happens when the White House does send nominees to the Senate? Last week, in response to the Obama administration submitting names to fill several long-standing vacancies on the D.C. Circuit, Republicans started objecting that the President is trying to "pack" the court. Once again, here's the videotape, and once again Senator Whitehouse is called upon to correct the misguided attacks of the opposition party, this time in the form of Senator Grassley's incorrect use of a term employed to describe President Roosevelt's attempt to increase the size of the Supreme Court. If merely nominating an individual to fill a court vacancy can be described as court packing, the term becomes meaningless, as that is what every president does.
The president is doing nothing more than fulfilling his duty to appoint judges to positions that Congress has already authorized, not to change the number of judges that are authorized to fill those seats. What Senator Grassley and some other Republican colleagues are trying to do, which is to push legislation to reduce the number of seats on the D.C. Court of Appeals, is actually a reverse form of what Roosevelt tried. President Roosevelt was frustrated with the conservative Supreme Court's overturning New Deal legislation, and suggested adding additional judges so as to change the ideological balance of the court. Republicans in the Senate are similarly trying to preserve the conservative character of the D.C. Circuit Court of Appeals, the second most important court in the nation in its effect on federal legislation and regulation, by preventing the president from appointing more liberal judges to existing vacancies, or even by eliminating those seats if they can.
As Senator Cornyn made abundantly clear, if the president fails to act to fill existing judicial vacancies, he will be attacked for that, even when the state's senators fail to submit any names to the White House. But as Senator Grassley also made clear, if the president does act to fill vacancies, he will be attacked for that also.