The United States Court of Appeals for the District of Columbia Circuit has been a hot topic of late, what with Senator Charles Grassley and other Senate conservatives trying to prevent President Obama from filling three vacancies on that court (out of 11 authorized seats) by claiming that the court does not need the judges.  Senator Grassley and his allies have gone so far as to introduce a bill that would eliminate those three judgeships from the court entirely — cutting the court’s authorized seats by nearly 30%.   As we’ve previously shown (see links here), these efforts are nothing more than a hyper-partisan, hypocritical effort to keep President Obama from putting judges on this court.

The latest attempt to bolster the Grassley effort at a mass filibuster of the President’s nominees comes from C. Boyden Gray, who in a column in the Washington Times accuses President Obama of trying to “pack” the D.C. Circuit and “tilt[] the court’s political balance.” This is a rather ironic claim from the man who founded the “Committee for Justice,” which fought hard, and successfully, to fill the federal courts with the conservative nominees of President George W. Bush.   Not just ironic, though, but also wrong.  A reader of Gray’s column might think that the D.C. Circuit is now in some sort of political equipoise, which the President is trying to upset.  This is far from the truth.

Ideologically speaking, the D.C. Circuit is completely out of balance, with nine Republican appointees and only five Democratic appointees, counting the court’s six very active senior judges.   (And not David Souter Republicans, either, but movement conservatives like Brett Kavanaugh and Janice Rogers Brown.)  Assuming all three of President Obama’s nominees are confirmed, the court will still be unbalanced in favor of Republican nominees, 9-8 (again counting both active and senior judges).  And while Gray is throwing bricks at President Obama simply for doing his job — carrying out his constitutional responsibility to nominate well-qualified individuals to fill vacant judicial seats — it’s worth noting that George W. Bush had four nominees confirmed to the D.C. Circuit (three of whom are still on that bench), while Gray apparently thinks President Obama has a quota of one.   

This week’s argument calendar at the D.C. Circuit is a telling example of the current state of that court.  As it happens, I was at the court yesterday morning to listen to the oral argument in Gilardi v. HHS, one of a number of cases brought by for-profit business corporations challenging as a violation of the corporations’ alleged right to the free exercise of religion the requirement of the Affordable Care Act that their group-based health insurance plans cover FDA-approved contraceptives for women.   (My colleague, David Gans, has an excellent analysis here of why these challenges should fail.)

If Senator Grassley and Boyden Gray had been at the court yesterday, they’d have seen that Gilardi, and the two cases argued after it, were being heard by a panel made up of Judges Harry Edwards, Janice Rogers Brown, and Ray Randolph.  In other words, two thirds of the panel were judges on senior status (Edwards and Randolph).   There was a second panel also hearing three cases yesterday; it was comprised of Judges Brett Kavanaugh, Stephen Williams, and David Sentelle – again, two-thirds of the panel on senior status (Williams and Sentelle).  All told, of the six panels hearing cases at the D.C. Circuit this week, five of them have a 2-1 majority of senior judges.   And, of those six panels, three are totally comprised of Republican appointees, and the other three have a 2-1 majority of Republican appointees.

This is not a scientific study of the D.C. Circuit, just one week in the life of the second most important court in the country.   It is a court that is unbalanced, packed and stacked.   Senator Grassley knows that, and so does C. Boyden Gray.  And it’s clear they’d like to keep it that way.