George W. Bush's Minor Impact on D.C. Circuit

Key appellate court is left ripe for liberal takeover

The D.C. Circuit has long been regarded as the most important federal appellate court, largely because it decides so many challenges to federal governmental actions.

When George W. Bush became president in 2001, judges appointed by Republican presidents held a 5-to-4 edge on the D.C Circuit over judges appointed by Democratic presidents. There were three vacancies on the twelve-judge court. So the prospect was promising for Bush to establish an 8-judge conservative majority.

But that’s not at all how things turned out. I’ve presented some key parts of the problem before, but I think that it’s enlightening to look at the larger picture.

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In May 2001, President Bush announced that he would nominate John Roberts and Miguel Estrada to two of the three vacancies on the D.C. Circuit. But his hopes for quick Senate confirmations were frustrated two weeks later when Senator Jim Jeffords of Vermont decided to leave the Republican party, thus handing control of the Senate to the Democrats. A fourth vacancy arose on the D.C. Circuit in September 2001 when Judge Stephen Williams took senior status, and the court became evenly divided (4 to 4) between appointees of Republican and Democratic presidents.

The Senate took no action on Roberts’s nomination in 2001 and 2002. Senate Democrats finally gave Estrada a confirmation hearing in late September 2002, when they were confident they would defeat his nomination.

Republicans regained control of the new Senate in 2003 by a 51-to-49 margin. Roberts had his confirmation hearing and was promptly confirmed by voice vote in May 2003. In sharp contrast, just two days before Roberts was confirmed, Senate Democrats initiated the filibuster as a weapon against Estrada and, after defeating seven cloture votes on his nomination, caused him to withdraw his candidacy in September.

In July 2003, Bush nominated Janice Rogers Brown and Brett Kavanaugh to the other two vacancies. Democrats filibustered Brown’s nomination, and Republicans didn’t push for a floor vote on Kavanaugh’s because they knew that it too would be filibustered.

In 2005, after winning a large majority in the Senate, Republicans unsuccessfully attempted to abolish the filibuster for judicial nominations. The Gang of 14 Agreement thwarted that attempt, but its seven Democratic signatories also committed to reserve the filibuster for exceptional circumstances. The Senate then confirmed Brown as well as Thomas Griffith, whom Bush nominated in 2004 to the seat that he had previously nominated Estrada to. And after a longer battle, it confirmed Kavanaugh in 2006.

Roberts left the D.C. Circuit in 2005 when Bush appointed him to the Supreme Court, and another vacancy arose when Harry Edwards (a Carter appointee) took senior status late in 2005. Kavanaugh’s appointment meant that the D.C. Circuit had seven appointees of Republican presidents and only three of Democratic presidents. So filling the Roberts and Edwards seats would give Republican appointees a commanding 9-to-3 margin.

But, as we have seen, Bush was unable to fill those two seats: Republican senators failed to act expeditiously to confirm Bush’s nomination of Peter Keisler before the November 2006 elections surprisingly put the Senate back in Democratic hands. And Republican senator Charles Grassley’s years-long campaign to decrease the size of the D.C. Circuit succeeded in eliminating the Edwards seat in 2008.

When Judge Raymond Randolph took senior status just days before Barack Obama’s election in November 2008, the Republican-appointee edge fell to 6 to 3, and Obama would inherit two vacancies to fill.

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Despite starting his presidency with three vacancies on the D.C. Circuit, George W. Bush over the course of eight years increased the contingent of conservative-to-moderate judges on the D.C. Circuit by only one. Bush’s failure meant that control of the D.C. Circuit would come up for grabs during Barack Obama’s presidency. As we shall see, the battle for control would have momentous consequences not only for the D.C. Circuit but for the judicial-confirmation process more broadly.