This excerpt is from a piece that originally ran on January 3, 2021.
Daniel Goldberg, legal director at the progressive advocacy group Alliance for Justice, told Law360 that filling D.C. appellate seats is critically important for Biden. “It is rightly considered the second most powerful court in the country,” he said, pointing to the separation-of-powers and rule-of-law issues that are daily fodder for its caseload.
During the Trump administration, debate among Democrats raged over whether their leadership made a wise move in 2013 by making it more difficult for the minority to block circuit court appointments, but Biden’s opportunity to move the D.C. Circuit further to the left is largely a result of that decision.
Goldberg noted that the 2013 decision by then-Majority Leader Harry Reid, D-Nev., to lower the cloture threshold on circuit court filibusters to 51 rather than 60, a change popularly called the “nuclear option,” was a pivotal moment in control of the D.C. Circuit. Even as Reid has taken a lot of heat for the change since it turned into a catalyst for the wave of Trump appointments to other circuit courts years later, Goldberg said that, without it, a cluster of Obama nominees to the D.C. Circuit would have otherwise been stuck in a Senate quagmire.
“I know some people in hindsight are criticizing Harry Reid,” he said, but the situation for progressives would be worse if Republican Leader Mitch McConnell had been able to stonewall Obama’s D.C. Circuit nominees as his caucus sought to “nullify President Obama’s ability to fill vacancies,” he said.
“Donald Trump would have been able to capture the D.C Circuit and put on more people like Justin Walker and Neomi Rao,” Goldberg said, referring to two of Trump’s three successful conservative appointments to the court.