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Stacking the D.C. Circuit

September 17, 2013

Majority Leader Reid has made clear his designs to switch the majority of judges on the U.S. Circuit Court of Appeals for the D.C. Circuit. The dwindling caseload on the D.C. Circuit, however, does not warrant the confirmation of more judges to that court. So why the insistence on adding judges to a court that doesn’t need it? Simple: President Obama and his political allies do not like many of the recent decisions handed down by the court, and they recognize that changing the majority of the court will stop such decisions and cement his agenda.

“We’re focusing very intently on the D.C. Circuit. We need at least one more. There’s three vacancies, we need at least one more and that will switch the majority.” - Majority Leader Harry Reid, August 9, 2013

The Caseload of the D.C. Circuit Has Decreased

In 2006, Senate Democrats argued the D.C. Circuit’s workload did not warrant more than 10 active judges. Using the same measurements Democrats used to block appointments – written decisions per active judge and total number of appeals filed – President Obama’s 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 37 percent since 2005, and the total number of appeals filed has decreased by more than 17 percent.

Written Decisions Per Active Judge

Total Number of Appeals Filed

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 to 81.  

Today, the D.C. Circuit Court ranks last or almost last in nearly every category that measures workload. In fact, according to Congressional Research Service, “the D.C. Circuit has the fewest number of appeals filed of the other regional appellate courts.” If ever there were a time to consider the need for not confirming nominees to judgeships on the D.C. Circuit, it is today.

Politically Motivated Nominations

The D.C. Circuit reviews many of the decisions of federal administrative agencies and hears appeals of many cases brought by special interest groups seeking to affect government policy. In recent years, the court has ruled against the President’s agenda several times:

  • In 2011, the court invalidated a rule applying the Dodd-Frank Wall Street reform law;
  • In 2012, it found that the EPA exceeded its authority by regulating cross-state power plant emissions; and
  • Earlier this year, the court held that the President’s unilateral appointment of three members of the National Labor Relations Board was unconstitutional.

The President and his political allies do not like many of the D.C. Circuit’s recent rulings. Rather than change their policies, they’ve decided to stack the court with judges that will rubber-stamp the President’s agenda.

“The president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit.” - Doug Kendall, President, Constitutional Accountability Center, April 2, 2013

Majority Leader Reid acknowledged that the point of adding judges to the Circuit was to correct a court that, as he saw it, was “wreaking havoc with the country.” Senator Schumer confessed that Senate Democrats want to “fill up” the D.C. Circuit “one way or the other.” It could not be clearer: these nominations are in response to the President not getting his way in the other two co-equal branches of government.