Should We Call the D.C. Circuit the SCOTUS Feeder Court?

By Robyn Hagan Cain on September 12, 2012 | Last updated on March 21, 2019

We’re in the final months of the presidential campaign season, so we all know that the outstanding judicial nominees for the D.C. Circuit Court of Appeals - Caitlin Halligan and Sri Srinivasan - will not see a confirmation hearing this year.

If Srinivasan were to get a hearing, he would probably be approved. He is currently serving as Deputy Solicitor General in the Obama administration, and his conservative credentials include clerkships with Justice Sandra Day O’Connor and Fourth Circuit Judge J. Harvie Wilkinson III. Srinivasan has bipartisan appeal

Halligan is a slightly tougher sell.

Nominated for Chief Justice John Roberts' former seat on the D.C. bench, Republicans previously filibustered Halligan's nomination. (Last year, the Republican Policy Committee referred to Halligan as an "injudicious choice" who fails to meet the "unbiased umpires" standard required of federal judges.)

Despite the fact that the D.C. Circuit Court of Appeals has the smallest geographic jurisdiction of the appellate courts, it is often viewed as a feeder court for the Supreme Court. Four of the current Nine are former D.C. Circuit judges: Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg.

(President Clinton nominated now-Justice Elena Kagan for the D.C. Circuit in 1999, though she was not confirmed.)

Chief Justices Fred M. Vinson and Warren Burger, and Associate Justice Wiley Blount Rutledge, also served on the D.C. Circuit before becoming Supreme Court justices.

And then there were the appellate judges who were nominated for High Court, but not approved.

President Reagan nominated D.C. Circuit Judge Robert Bork for the Supreme Court in 1987, though the Senate rejected his nomination. Former D.C. Circuit Chief Judge Douglas Ginsburg also received a Reagan/SCOTUS nod in 1987, but he withdrew his nomination after the public was scandalized by his past marijuana use.

Seven Supreme Court justices from the D.C. Circuit alone? That's a pretty impressive number.

So should Srinivasan and Halligan curl up in their Snuggies and cry into a pint of ice cream because their D.C. Circuit dreams aren't being realized? Not quite yet.

As the Volokh Conspiracy points out, a number of prominent D.C. Circuit judges have had to battle through the confirmation process twice before securing a seat on the influential court.

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