Federal Courts and Nominations

Did Senator Grassley Not Check His Inbox? — His Proposal to Gut the D.C. Circuit Ignores the Judicial Conference

On April 10, 2013, Senator Charles Grassley, Ranking Member of the Judiciary Committee, kicked off the confirmation hearing for D.C. Circuit nominee Sri Srinivasan by announcing that he was introducing a “Court Efficiency Act,” S.699, which would, if enacted, eliminate three of the 11 authorized judgeships from the D.C. Circuit, and add one judgeship each to the Second Circuit and the 11th Circuit.  Senator Grassley claimed the proposal was justified by the “imbalance” in the workloads of three Circuits, and stated that the bill would take effect upon enactment.  All of the other Republican members of the Judiciary Committee were identified as co-sponsors of the bill.  

We immediately blasted this proposal for the partisan sham that it is: a “mass filibuster” of President Obama’s future nominees to this critical circuit court.  Senator Grassley’s bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic President fill those three vacancies on the D.C. Circuit.  The “workload” argument is a smokescreen.  As Judiciary Committee Chair Patrick Leahy has observed, Senator Grassley and his Republican colleagues had no problems in 2005 confirming G.W. Bush nominees Janice Rogers Brown and Thomas Griffith to fill the 10th and 11th seats on the D.C. Circuit when the caseload per active judge was less than it is now.

That Senator Grassley’s proposal to eliminate the 9th, 10th, and 11th seats on the D.C. Circuit is a partisan ploy is evidenced not only by the numbers but also because it is not based on any study and in fact ignores recent recommendations of the Judicial Conference to Congress regarding the number of judgeships on the federal courts.  By letter of April 5, 2013 to Senate Judiciary Chairman Patrick Leahy, a copy of which was also sent to Senator Grassley, the Judicial Conference transmitted to the 113th Congress “the Conference’s Article III and bankruptcy judgeship recommendations and corresponding draft legislation for the 113th Congress.”  With respect to the circuit courts, these recommendations include the addition of four judges to the Ninth Circuit and one to the Sixth Circuit; there is no recommendation to eliminate any of the judgeships on the D.C. Circuit or to leave any of that court’s vacancies unfilled.  In addition, the Judicial Conference has not made any recommendation to add any judges to the Second or 11th Circuits.  Senator Grassley’s proposal would not only gut the D.C. Circuit, it would move two of that court’s judgeships to courts where the Judicial Conference has not said they are needed.    

Senator Grassley’s proposal is based solely on a numeric comparison of cases pending per judge in the D.C. Circuit and in the Second and 11th Circuits.  But this comparison wrongly assumes that the typical D.C. Circuit case is similar to the typical case in any other Circuit.  It isn’t; Senator Grassley is comparing apples to oranges.   As former D.C. Circuit Chief Judge Pat Wald — who served on that court for more than twenty years — has explained:

The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.  These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.[1]

Judge Wald further noted that “My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases.  The nature of the D.C. Circuit’s caseload is what sets it apart from other courts.”[2]   Chief Justice John Roberts, himself a former D.C. Circuit Judge, has also described the uniqueness of the D.C. Circuit’s caseload:

It is when you look at the docket that you really see the differences between the D.C. Circuit and the other courts.  One-third of the D.C. Circuit appeals are from agency decisions.  That figure is less than twenty percent nationwide.  About one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government; nationwide that figure is only five percent.  All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide.[3]

The D.C. Circuit is generally considered to be the Nation’s second most important court, after the Supreme Court.  This is because the D.C. Circuit has exclusive jurisdiction over disputes involving numerous federal laws and regulations, and is responsible for resolving critically important cases involving national security, environmental protection, employment discrimination, food and drug safety, separation of powers, and the decisions of a wide array of administrative agencies.   The full staffing of this court is of nationwide importance.  Certainly no decision to effectuate a nearly 30% reduction in the number of judges on this critical court should made in a partisan, political manner and without careful study.

But Senator Grassley’s bill really isn’t about re-balancing judicial workloads among several Circuits.  It’s about keeping President Obama from putting more judges on the D.C. Circuit.   We know a sham when we see one, and we think the America people do too.

[1]  Patricia M. Wald, “Senate must act on appeals court vacancies,” Washington Post (Feb. 28, 2013), available at:

< http://articles.washingtonpost.com/2013-02-28/opinions/37350554_1_senior-judges-chief-judge-appeals-court-vacancies>

[2] Id.

[3] John G. Roberts, Jr., “What Makes the D.C. Circuit Different? A Historical View,” 92 Va. L. Rev. 375, 376-77 (2006).