Bush's Court: How the D.C. Circuit Threatens the Future of Progressive Reform

Four years into President Obama's presidency, he has yet to have a single judge confirmed to the hugely influential Court of Appeals for the D.C. Circuit. This lapse, caused initially by a slow start from the administration but perpetuated by a blockade of obstruction in the Senate, threatens to hinder progressive advances for years to come, argues a new report from People For the American Way.

The report, AMERICA'S PROGRESS AT RISK: RESTORING BALANCE TO THE DC CIRCUIT COURT OF APPEALS, can be found here.

"The D.C. Circuit is the most important court most Americans have never heard of," said Marge Baker, Executive Vice President of People For the American Way. "The D.C. Circuit's judges have the final word on scores of federal laws each year, from air pollution controls to financial regulations to workers' rights. Republicans have long understood this, and have packed the court with far-right ideologues who threaten to hold back American progress for decades to come. And they have so far blocked confirmation of judges who would bring any balance to this court."

President Obama is the first president since Woodrow Wilson to fail to have a single nominee confirmed to the D.C. Circuit during his first full term in office, despite the fact that four of the eleven seats on the court are now vacant. His first nominee to the court, the indisputably qualified Caitlin Halligan, was twice blocked by Senate Republicans for reasons widely recognized as spurious.

As a result, the D.C. Circuit continues to be dominated by judges pushing a right-wing ideology long rejected by the American people. The right-wing majority of the D.C. Circuit has continuously sought to dismantle progressive efforts to defend consumers, protect public health, and ensure the rights of workers. Recent D.C. Circuit decisions highlighted in the report include:

* Noel Canning v. NLRB: In January, the D.C. Circuit invalidated three presidential appointments to the National Labor Relations Board, undermining the Board's ability to protect the rights of workers and giving the green light to Senate Republicans who wish to decimate any federal agency by blocking appointees.

* EME Homer City Generation v. EPA: In 2012, the D.C. Circuit sided with utility companies to strike down EPA air pollution regulations that would have prevented an estimated 34,000 premature deaths and saved $280 billion a year in healthcare costs.

* Business Roundtable v. SEC: In 2011, the D.C. Circuit overturned an SEC rule requiring greater accountability from corporations to their shareholders in selecting board members. One observer noted that in doing so the judges - none of them securities experts - had "waded into a political fight under the guise of dispassionate scientific oversight."

* RJ Reynolds Tobacco v. FDA: Last year, the D.C. Circuit ruled that FDA regulations requiring cigarette manufacturers to place graphic, factually accurate warnings on their product violated tobacco companies' First Amendment free speech rights.

* Hein Hettinga v. USA: George W. Bush nominee Janice Rogers Brown used a case about milk market regulation last year to issue a call to arms against eight decades of progressive reforms. Courts that have allowed the government to implement reasonable regulations of industry have, she said, put "property...at the mercy of pillagers."

"President Obama has a chance in his second term to restore ideological balance to the D.C. Circuit," added Marge Baker. "It is critically important that he do so. Otherwise, D.C. Circuit will continue to stand in the way of progressive reforms -- reforms chosen by American voters -- and threaten to roll back decades of hard-won protections for working people and consumers."