Federal Courts and Nominations

A Note to Senator Grassley: Ten < Eleven

On Thursday, Senator Charles Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, and all of his Republican colleagues on the Committee, voted in partisan lockstep against the confirmation of Caitlin Halligan to the D.C. Circuit.  (Halligan’s nomination was approved by the Committee, 10-8.)  During the Committee’s Business Meeting on March 10, Senator Grassley was the only member of his party to identify his objections to this well-qualified nominee.  And while it wasn’t terribly surprising to learn that a conservative Senator professed to have concerns about the “judicial philosophy” of an Obama appellate court nominee (despite the support for Halligan’s confirmation from such conservative luminaries as Miguel Estrada), it was surprising that Senator Grassley apparently objects to filling this D.C. Circuit vacancy, period.

In fact, Senator Grassley began his speech in opposition to Halligan’s confirmation by noting that the seat to which she has been nominated has been vacant since September 2005, that President George W. Bush had tried to fill it with Peter Keisler, but that Keisler never received a vote.  Senator Grassley asserted that some Democrats at that time had expressed concerns about the need to fill the vacancy, given the D.C. Circuit’s workload.  So now, tit for tat, apparently.

However, there are two significant problems with the Keisler reference.  First, and unmentioned by Senator Grassley, there were procedural issues with the Keisler nomination (see, e.g., here and here).  Second, and most important given the numbers game, Senator Grassley failed to note that Keisler would have been the 11th active judge on the D.C. Circuit, whereas there are now only 9 active judges on that court.  The Senator also failed to note that in 2005, he and every other Republican Senator who cast a vote on the Senate floor voted to confirm Bush nominee Thomas Griffith to what was the 11th seat on the D.C. Circuit.

In response to Senator Grassley’s apparent numerical amnesia on Thursday, Committee Chair Patrick Leahy stated that the D.C. Circuit’s caseload is similar now to what it was during the G.W. Bush Administration, and that the Senate during that Administration had twice filled what was then the 10th seat on the Circuit (with Janice Rogers Brown and later with Brett Kavanaugh), as well as the 11th seat once (with Griffith).  As Senator Leahy further noted, to the extent there have been workload concerns about the D.C. Circuit, Congress addressed them in 2007 by eliminating the 12th seat on the court, leaving 11 authorized judgeships.  Caitlin Halligan, if confirmed, would fill the 10th seat.

Whatever Senator Grassley may think about Ms. Halligan’s substantive qualifications to be a federal judge, he should at least get the numbers right, and be consistent about them.

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