Is the D.C. Circuit Driven by Political Agenda?

By Brett Snider, Esq. on August 29, 2013 | Last updated on March 21, 2019

As the fight over the remaining three seats in the D.C. Circuit continues, the hyperbolic minds of the pundit machine are lurching into action, decrying the court as the last bulwark between the American people and an Obama-created regulatory juggernaut.

Carrie Severino of the subtly-named Judicial Crisis Network warned on Saturday that "[t]he D.C. [C]ircuit is the only thing" able to stop the Obama Administration's bundle of regulations (e.g., The Affordable Care Act) by challenging them on appeal, reports Fox News.

But are the courts really so politically motivated? The eight current members of the D.C. Circuit are split half-Democrat and half-Republican, yet many have decisions of the court regarding regulation that have not fallen along party lines.

1) Judge Thomas B. Griffith

Appointed during the George W. Bush administration, Griffith is ostensibly a conservative thinking member of the court, yet he decided for regulations which allowed police officers to receive both a pension and their salaries.

It might have been easier from a party platform standpoint to side against increased government benefits for public workers, but Kavanaugh may have decided the case based on a sound interpretation of federal labor law, not politics.

2) Senior Judge Douglas H. Ginsburg

Although Nina Pillard has been nominated to take his vacated seat, the Reagan-nominated Ginsburg managed to eek out a fairly important regulatory decision in 2013 before he bid adieu to the court.

Although many Reagan-era and current Republicans still fervently support capital punishment, Ginsburg sent a pretty strong message to the FDA to quit turning a blind eye to prisons importing unapproved drugs to be used in death penalty lethal injections.

3) Brett M. Kavanaugh

Sometimes regulatory decisions are based on legislation that has too muddled of a political pedigree to determine whether either party would still support it, like a pilot program for Mexican truckers upheld by George W. Bush-nominated judge Kavanaugh.

The program was originally created by a Bush-signed law, but defunded and then refunded under Obama, so maybe Kavanaugh was just doing his job, and not engaging in partisan maneuvering, when he upheld the law against a barrel of challenges from trucking unions.

Remember, even the U.S. Supreme Court's Chief Justice Roberts, who ascended from the ranks of the D.C. Circuit in the mid 2000s by a G.W. Bush nomination, penned the majority opinion in Hollingsworth v. Perry, a case which may have rubbed his conservative colleagues -- cough, Scalia, cough cough -- the wrong way.

Bottom Line

Yes, this is a cherry-picked set of cases, but that further proves the point that the assumed political affiliation of D.C. Circuit judges, or any judicial nominees, will not indelibly affect regulatory frameworks for years to come.

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