Senator Charles Grassley (R-IA) is not having a very good week.  On Sunday, the Des Moines Register editorialized against Senator Grassley’s effort to block confirmation votes on President Obama’s three highly-qualified nominees to the United States Court of Appeals for the D.C. Circuit, dismissing his proposal to eliminate those three judgeships as a partisan effort.   A couple of days later, one of Senator Grassley’s Republican colleagues, none other than former presidential candidate John McCain of Arizona, told the press that President Obama’s nominees to the D.C. Circuit deserve up-or-down votes, correctly noting that “elections have consequences.”  Finally, to top things off, yet another Republican colleague, Senator Susan Collins of Maine — a co-sponsor of the Grassley proposal no less — announced that she will consider each of the President’s three nominees on the merits.  After a week like this, it’s not terribly surprising to find Senator Grassley back on his heels, offering up yet another defense of his proposal to gut the D.C. Circuit.  Once again, the facts don’t add up.

For example, in this latest writing, Senator Grassley states that “Today, the D.C. Circuit is split evenly four to four among Republican and Democratic appointees.  There’s little question the president would like to tip the scales of this court in his philosophical favor.”  In fact, the scales are overwhelmingly tipped in favor of Republican appointees, 9-5.  While the D.C. Circuit has 11 authorized “active” judicial seats, three of which are currently vacant — the seats Senator Grassley would like to eliminate — the court also has six judges on “senior status,” five appointed by Republican presidents, and one by a Democrat.  These semi-retired judges are not potted plants collecting a federal pension — they regularly hear cases alongside their “active” colleagues.  In fact, to date this year alone, the D.C. Circuit’s judges on senior status have participated in 69% of the cases in which there were published decisions by three-judge panels.  Also, the senior judges on the D.C. Circuit include such conservative luminaries as Laurence Silberman and David Sentelle.  Even if all of President Obama’s nominees to this court are confirmed, the court will still be tilted in favor of Republican appointees.  

All of which is actually beside the point; three of the court’s authorized seats are vacant, and it is the President’s constitutional responsibility to nominate qualified people to fill those vacancies.  He’s now done that.  Senator Grassley makes it sound as though President Obama, by doing his job, is somehow doing something wrong.   

Senator Grassley also notes in his new piece that in 1996, he “conducted a series of oversight hearings to examine the allocation of federal judgeships.”  While we’re not aware of hearings that year, Senator Grassley did conduct hearings in October 1995 “Examining the Caseload of the U.S. Court of Appeals for the District of Columbia Circuit and the Appropriate Allocation of Judgeships.”  Those hearings yielded an important nugget from Judge Silberman himself, who testified as to the “unique nature of the D.C. Circuit’s caseload,” stating that he did “not believe a direct comparison to the other circuits is called for.”  Yet that very same “direct comparison to the other circuits” is the foundation of Senator Grassley’s claim that the D.C. Circuit is underworked compared with other appellate courts and does not need any more judges.  As Judge Silberman’s testimony makes clear, Senator Grassley is comparing apples and oranges.  Senator Grassley’s entire exercise is a partisan pretext to prevent President Obama from filling the vacancies on this court. 

It’s good to see important voices in the press and in the Senate recognize that the President’s nominees deserve a vote.  All in all, it hasn’t been a very good week for Senator Grassley’s efforts at a mass filibuster of those nominees.  And that’s a big plus for the Nation, which deserves a fully-staffed D.C. Circuit.