Majority Leader Reid has made clear his intention to push for the confirmation of judicial nominees to stack the U.S. Circuit Court of Appeals for the D.C. Circuit. But the most underworked appeals court in the country should not be manipulated by the President and his political allies to advance their agenda. Rather than put more judges on a court with a dwindling caseload, Senate Republicans should coalesce around legislation that will equitably re-allocate judgeships to appellate courts that actually need them.
A Declining Caseload: Senate Democrats’ 2006 Standard
In 2006, Senate Democrats argued the D.C. Circuit’s workload did not warrant more judges. Back then, they insisted on a standard based on the court’s workload and relied upon it to block a Bush Administration nominee for nearly 1,000 days. Now they seek to abandon that standard to fill the court with nominees to their liking.
Using the same measurements Democrats used to block appointments – written decisions per active judge and total number of appeals filed – President Obama’s current nominees are unnecessary. According to data from the Administrative Office of the U.S. Courts, the number of written decisions per active judge on the D.C. Circuit has decreased by almost 27 percent since 2005, and the total number of appeals filed has decreased by 18 percent during that time.
“The D.C. Circuit has the fewest number of appeals filed of the other regional appellate courts.” -- Congressional Research Service, May 2013
In addition, data provided by the Chief Judge of the D.C. Circuit confirm that the circuit’s caseload is decreasing. The average number of cases heard per active judge during the 2005-2006 term was 91, but by the 2012-2013 term that number had fallen 11 percent to 81. In fact, after the Senate unanimously confirmed President Obama’s last nominee to the D.C. Circuit a few months ago, judges who currently serve on that court advised Judiciary Committee Ranking Member Grassley that the court’s light workload didn’t justify more judges.
“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. ... If any more judges were added now, there wouldn’t be enough work to go around.” -- D.C. Circuit Court Judge, June 2013
Compromise: The Way Beyond Impasse
Senator Grassley’s compromise legislation prevents the politicization of the D.C. Circuit. It would transfer judgeships from the D.C. Circuit, where they are not needed, to circuit courts that need them. Under this proposal, one judge would be transferred immediately from the D.C. Circuit (the court with the lowest workload) to the Second Circuit and one judge to the Eleventh Circuit. President Obama would still be able to appoint these two judges to courts where they are needed – unlike past legislation deferring appointment to the next President.
The design of this legislation has recent precedent: Senate Republicans transferred one D.C. Circuit judgeship to the Ninth Circuit in 2007 (with an effective date of January 2009, when President Bush would not be able to make an appointment). Senators Feinstein and Kyl argued at the time for the need to correct over-authorization of D.C. Circuit judgeships by providing those judgeships to the deficient Ninth Circuit.
Reject the Politicization of the D.C. Circuit
Majority Leader Reid has acknowledged that the point of putting more judges on the D.C. Circuit was to correct a court that, as he saw it, was “wreaking havoc with the country.” The President’s political allies have confessed that “the best hope for advancing” President Obama’s agenda is through executive action, and “that runs through the D.C. Circuit.”
The D.C. Circuit “controls all kinds of government decisions. And there are now four vacancies on that court and it’s dominated by the hard right ... We have to fill the D.C. Circuit.” -- Senator Schumer, March 30, 2013
Senate Democrats and their allies have been quite clear: they are pushing to make more appointments to the D.C. Circuit -- not because they are needed, but because they want judges who will rubber-stamp the President’s agenda. Senate Republicans ought to reject this transparent attempt to circumvent the will of the people.