The latest Republican proposal to remove three judges from the U.S. Court of Appeals for the D.C. Circuit — as unlikely as it seems to happen at this point — isn’t unprecedented. But this time it brings with it an ideological battle about the political makeup of the nation’s second highest court.
U.S. Senator Charles Grassley (R-Iowa) pitched the Court Efficiency Act on Wednesday, after years of Republican argument that the D.C. Circuit has more judges than it needs. Grassley made a similar move during the George W. Bush administration, playing a role in removing one judge from the prominent Washington appeals court.
Back then, Senator Dianne Feinstein (D-Calif.) pushed for the move as well, because the judgeship went to the overworked Ninth Circuit.
This year, however, the White House and Democrats, who control the Senate, are complaining that Republicans are trying to shift the D.C. Circuit’s political makeup by blocking all of President Obama’s nominees.
So far, Obama has not succeeded in appointing any judge to the D.C. Circuit.
Grassley announced his legislation during the confirmation hearing for Sri Srinivasan, a top U.S. Justice Department appellate lawyer and a former O’Melveny & Myers partner. Srinivasan’s nomination is regarded as a test of whether Republicans will confirm anyone to the D.C. Circuit during Obama’s presidency.
The D.C. Circuit has four vacancies. Srinivasan, the principal deputy solicitor general, is the only pending nominee for any of the open slots. Republicans successfully blocked Obama’s first nominee, Caitlin Halligan, who withdrew from consideration last month.
Grassley’s legislation wouldn’t affect Srinivasan. "President Obama would still have the opportunity to make two of these appointments," Grassley said. "The only difference is that those appointments would be to the Second and Eleventh circuits, where they are needed, rather than to the D.C. Circuit, where they clearly are not needed."
Grassley pulled his own statistics from the Administrative Office of the U.S. Courts to justify the move, but it wasn’t clear the Second and Eleventh Circuits need the help. In March, the U.S. Judicial Conference recommended the creation of one permanent judgeship in the Sixth Circuit and four permanent and one temporary judgeship in the Ninth Circuit.
The judicial conference had no recommendations for the Second Circuit, Eleventh Circuit or D.C. Circuit. In the past, the Eleventh Circuit has steadfastly refused all efforts to add judgeships, said Russell Wheeler, a Brookings Institution fellow and expert on judicial nominations.
To be sure, the arguments about the court’s caseload is nuanced, full of statistics and open for interpretation. As Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chairman, said during this week’s Srinivasan hearing: "It’s all in the eye of the beholder."
According to Wheeler, the statistics for how long courts take to dispose pending cases suggest that the D.C. Circuit "is doing fairly well" comparatively. But that does not take into account that four senior judges remain active on the D.C. Circuit, he said. (The senior judges on the appeals court regularly sit on three-judge panels, and those judges also write opinions.)
While Grassley touts the statistics, the Democrats point to their own set of figures to buck his argument. For example, Republicans voted this year to confirm Robert Bacharach to the Tenth Circuit, which has a lower caseload per judge than the D.C. Circuit. And there are four fewer active judges on the D.C. Circuit than there were in 2005, when President Bush’s nominees were confirmed.
Retired D.C. Circuit Chief Judge Patricia Wald has argued out that the D.C. Circuit’s cases are unlike those in any other circuit because it enjoys exclusive jurisdiction over complex regulatory issues, requiring judges to build up expertise in those areas.
"It demanded we take a lot of extra time and care," Wald said in an interview on Thursday. "It’s not going to be like the Supreme Court, where we’ll just let it percolate through the other circuits."
Todd Ruger can be contacted at email@example.com.