Will Obama Get Any D.C. Circuit Nominees Through?

Republicans have kept up a steady drumbeat of obstruction to Barack Obama’s judicial nominees, and nowhere is the problem more glaring than the U.S. Court of Appeals for the D.C. Circuit, a venerable institution that hears major cases challenging environmental and civil rights regulations.

Obstruction of nominees to this particular Appeals Court ramped up under George W. Bush, largely because of the historical trend of presidents using it as a springboard for their Supreme court nominees.

“The D.C. Circuit Court is the training ground for the Supreme Court, so the party out of power sees those as proto-Supreme Court appointments and draws the line there,” said Noah Feldman, a Harvard legal historian.

Obama nominated Caitlin Halligan, former New York state solicitor general, in September 2010. Her appointment was blocked by the Republicans in the Senate at the end of last year.

“It is now getting almost too late for this presidential term, especially in the thick of an election year,” University of North Carolina law professor Michael Gerhardt, who has studied nominations and was special counsel to Senate Judiciary Committee Chairman Patrick Leahy during the Sonia Sotomayor and Elena Kagan Supreme Court confirmations, told Reuters.

“That would leave the second most important court in the land without the kind of balance he might have achieved.”

Republican presidents nominated eight of the active justices on the Court to Democrats’ three, leaving the GOP a large crop of potential Supreme Court nominees but also leverage in fighting against Democratic efforts to expand the scope and rigor of the regulatory state. In that respect, Obama’s failure could prove enduring.

And legislative achievements notwithstanding, he is all but certain to become the first president in at least 50 years not to successfully appoint a single judge to the D.C. Circuit Court during his first term in the White House.