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Obama Seizes Control of 'Second Highest Court'

Image: Obama Seizes Control of 'Second Highest Court' President Barack Obama on June 4, 2013 announces the nominations of, from left, Robert Wilkins, Cornelia Pillard, and Patricia Ann Millet, to the U.S. Court of Appeals for the District of Columbia Circuit.

Thursday, 09 Jan 2014 12:03 PM

By John Gizzi

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The Senate is poised to confirm Robert L. Wilkins to the U.S. Court of Appeals for the D.C. Circuit — the final battle in a bruising war between the White House and Senate Republicans over the "second highest court in the land."

The D.C. Circuit deals with cases against the federal government. Anyone who has a complaint with a regulatory agency or wants to challenge an excess of the federal government usually winds up there.

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"We will fill up the D.C. Circuit one way or another," Democratic Sen. Charles Schumer of New York said in a speech March 10, in which he attacked Republican-led filibusters against President Barack Obama’s nominees as "specious."

In November, Obama effectively gained control of the 11-member court when Senate Majority Leader Harry Reid triggered the "nuclear option" — reducing the threshold needed to stop a filibuster from 60 votes to a simple majority.

Within weeks, Obama nominees Patricia Millett and Cornelia Pillard were confirmed for the court. Wilkins' confirmation will likely be completed by the Senate no later than February, giving the court its full complement of judges.

Republican Sen. Pat Toomey of Pennsylvania said that because the D.C. Circuit dealt with cases related to the Environmental Protection Agency, he had concerns about what nominees had said about the coal and utilities industries that are so important to his state.

But his concerns and Pennsylvania's won't matter after the change in filibuster rules, "because the next nominee [to the D.C. Court] won't need my vote," Toomey said at a Pennsylvania Society meeting.

"Of the eight full-time judges on the court before these latest confirmations — not including judges on senior status — there was a 4-4 split between Democratic appointees and Republican appointees," Hans von Spakovsky, senior legal fellow at the Heritage Foundation, told Newsmax.

"Now there are six Democratic appointees and four Republican appointees and there will soon be seven Democrats and only four Republicans."

Von Spakovsky underscored the priority the White House placed on taking control of the D.C. Court of Appeals. Among the key cases in which the court ruled against the Obama administration, "the court invalidated a rule applying the Dodd-Frank financial reform law, overruled a burdensome Environmental Protection Agency rule regulating cross-state power plant emissions, and ruled President Obama's sham 'recess' appointments to the National Labor Relations Board unconstitutional," he said.

Citing the line-up of the court as the Senate prepares to take up Wilkins' nomination, von Spakovsky concluded: "All of those new Obama appointees are guaranteed to vote on [Obama's] side — they would never have voted to override the Environmental Protection Agency or Obama's National Labor Relations Board appointments."

There is one more reason the White House and Senate Democrats have placed such a priority on controlling the D.C. Circuit: its history as a stepping stone to the "highest court in the land" — the Supreme Court.

Four of the present nine justices of the high court — Antonin Scalia, Ruth Bader Ginsberg, Clarence Thomas, and Chief Justice John Roberts — were previously judges of the D.C. Circuit. A fifth justice, Elena Kagan, was nominated to the D.C. Circuit by President Bill Clinton but never confirmed. Two chief justices of the 20th Century, Fred M. Vinson and Warren Burger, previously served on the D.C. Circuit.

John Gizzi is chief political columnist and White House correspondent for Newsmax.

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