Memo for the Movement: Congress Must Stop the Obama Court-Packing Plan

Conservative Action Project
Memo for the Movement

The Conservative Action Project, chaired by former Attorney General Edwin Meese and former Congressman David McIntosh, is designed to facilitate conservative leaders working together on behalf of common goals. Participants include the CEO’s of over 100 organizations representing all major elements of the conservative movement-economic, social and national security.

Congress Must Stop the Obama Court-Packing Plan

Current Event:

President Obama is seeking to add three new judges to the U.S. Court of Appeals for the D.C. Circuit, one of the most important but most underworked courts in the country.  The move is a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.


  • Congress should pass legislation to reduce the size of the D.C. Circuit to fit its actual workload. Legislation to this effect has been introduced by Senator Charles Grassley in the Senate and Rep. Tom Cotton in the House.
  • The Senate must reject any new nominee to the D.C. Circuit, regardless of that nominee’s party, background, or philosophy.

Issue in Brief:

The D.C. Circuit’s workload has been in consistent decline in the last decade.  According to United States Courts statistics, the number of pending appeals in the D.C. Circuit declined more than 10% between September 2005 and September 2012.  There has also been a significant decline (more than 14%) in the number of cases filed in the D.C. Circuit.  In fact, the court’s workload is now so low that it is not uncommon for the court to cancel argument dates because there are not enough cases.

But the court, which is largely responsible for reviewing the actions of the ever-growing administrative state, has served as one of the most effective checks on President Obama and his extreme agenda.  According to liberal activist Nan Aron, “The court is critically important – the majority has made decisions that have frustrated the president’s agenda.”  President Obama and his Democratic allies have been especially hostile to the D.C. Circuit since it invalidated his non-recess appointments to the NLRB, after he tried to circumvent the constitution’s advice and consent process.  Similarly, the court has been criticized by liberals for invalidating a burdensome and illegal EPA rule which would have shut down power plants and increased American energy costs.

Federal courts have been a very low priority for most of President Obama’s tenure.  But he has learned that a court that abides by the Constitution and traditional legal principles is a serious threat to his plan to insulate the administrative state from accountability.  Here are just a few examples of cases President Obama would like to see decided by a politically motivated D.C. Circuit: 

  • The lawsuit filed recently by a group of small business owners in six states seeking to invalidate a key IRS regulation imposed by Obamacare.
  • A constitutional challenge to Dodd-Frank, the massive bill that institutionalized taxpayer funded bailouts for big banks.
  • A challenge to the HHS contraceptive mandate, which forces religious organizations to violate their deeply held religious beliefs, or pay crippling fines.
  • Lawsuits challenging EPA regulations designed to stop fracking, the oil and gas extraction technique that has yielded a significant decrease in energy costs. 
  • Lawsuits against IRS officials who wrongfully targeted American citizens because of their viewpoints.

To guarantee the desired political outcome in such cases, President Obama seeks to do exactly what President Franklin Roosevelt did when his agenda faced constitutional problems in the Supreme Court:  pack the court with allies who will decide cases on the basis of politics instead of the Constitution and traditional legal principles.   Or, as Senator Chuck Schumer put it, Democrats “will fill up the D.C. Circuit one way or another.”

One way they plan to “fill up the D.C. Circuit” is to put pressure on Republican Senators who fear that Majority Leader Harry Reid will use this opportunity to abolish the filibuster, destroying the minority party’s ability to debate important legislation.  But no Senator should fall for that trap.  Republicans have treated President Obama’s judicial nominees fairly, confirming more than 111 of them during the 112th Congress, more than during any other Congress in 20 years.  According to President Obama, his nominees have waited “three times longer to receive confirmation votes than those of my Republican predecessors.”  But that is simply not true.  During his entire first term, President Obama’s appellate nominees waited an average of 240 days from nomination to confirmation.  By contrast, President George W. Bush’s nominees waited an average of 283, and some waited for years.

No spin on the statistics will make it any easier for President Obama or Senator Reid to prove the existence of a crisis, because none exists.  This is nothing more than a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.  It must be stopped.


The Honorable Edwin Meese III
Former Attorney General 
President Ronald Reagan
The Honorable David McIntosh
Former U.S. Representative
Mike Needham
Heritage Action for America
Tony Perkins
Family Research Council
Grover Norquist
Americans for Tax Reform
Brent Bozell
Colin Hanna
Let Freedom Ring
David Bossie
Citizens United
Phyllis Schlafly
Founder and President
Eagle Forum
The Honorable J. Kenneth Blackwell
Constitutional Congress, Inc.
The Honorable T. Kenneth Cribb, Jr.
Former Counselor to the U.S. Attorney General
President Ronald Reagan
The Honorable Alfred S. Regnery
Former Publisher
The American Spectator
William L Walton
Rappahannock Ventures LLC
Bob Reccord
Executive Director
Council for National Policy
Morton Blackwell
The Weyrich Lunch
Heather Higgins
Independent Women’s Forum
Kellyanne Conway
The Polling Company
Carrie Severino
Chief Counsel and Policy Director
Judicial Crisis Network
Gary Bauer
American Values
Mathew D. Staver
Liberty Counsel Action
Jim Martin
60 Plus Association
Nathan Mehrens
Americans for Limited Government
Duane Parde
National Taxpayers Union
Gary Aldrich
CNP Action, Inc.
Judson Phillips
Tea Party Nation
Gary Marx
Executive Director
Faith & Freedom Coalition
Phillip Jauregui
Judicial Action Group
Frank Cannon
American Principles Project
Curt Levey
The Committee for Justice
Jim Ryun
The Madison Project
Phil Kerpen
American Commitment
Tom Winter
Tim Wildmon
American Family Association
Raymond J. LaJeunesse, Jr.
Vice President & Legal Director
National Right to Work Legal Defense Foundation, Inc.
Susan Carleson
American Civil Rights Union
Andrea Lafferty
Traditional Values Coalition
Lewis Uhler
National Tax Limitation Committee
Mario H. Lopez
Hispanic Leadership Fund
Craig Shirley
Reagan Campaign Biographer
Rev. Lou Sheldon
Traditional Values Coalition
Lee Beaman
Nashville, TN
Angelo M. Codevilla
Professor Emeritus
Boston University
Tom Donelson
America’s PAC
Kay R. Daly
Coalition for a Fair Judiciary
Ralph Benko
Center for Civic Virtue
Andresen Blom
Senior Strategist
Center for Civic Virtue
C. Preston Noell III  President
Tradition, Family, Property, Inc.
Dan Bongino
Candidate for Congress
George Landrith
Frontiers of Freedom
Gene Mills
Louisiana Family Forum
Mike Stenhouse
Rhode Island Center for Freedom & Prosperity
Richard Viguerie
Elaine Donnelly
Center for Military Readiness
Larry Cirignano
Faithful Catholic Citizens
Jim Backlin
Christian Coalition of America
Bob Adams
Revive America USA
Dr. William Greene
Paul Caprio
Family PAC Federal
Sandy Rios
Vice President
Family PAC Federal
Melissa Ortiz
Able Americans
Catherine Engelbrecht
True the Vote

 (All organizations listed for identification purposes only.)