Not Dead Yet

One of the arguments some Democrats have invoked in favor of filibustering the nomination of Miguel Estrada is that the important court on which he would serve — the United States Court of Appeals for the District of Columbia — frequently divides 4-4 between liberals and conservative, so that Estrada would tip the balance. Even if true, this argument, while perhaps explaining the Democrats’ obstruction, would be problematic. There is no rule or presumption that federal appeals courts should be even divided along party lines, nor would a 5-4 conservative majority be inconsistent with the overall political balance of power in this country.
In any event, Robert Alt for National Review Online claims that it is not even true that the D.C. Circuit is the ideological battleground depicted by the Democratic Senators. Citing statistics, as well as a recent Washington Post article, Alt argues that the court rarely divides along partisan lines, even in hot-button cases. In short, it is not even clear that the Senate Democrats have strong ideological reasons for keeping the D.C. Circuit understaffed and obstructing the business of the Senate. Perhaps they are doing this mainly to prove that they are not dead yet.

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