I’ve written here, here, and here about Cornelia Pillard, President Obama’s radical feminist nominee for the U.S. Court of Appeals for the District of Columbia. But I haven’t yet commented on the threshold question of whether any additional judges should be seated on the D.C. Circuit.
This was a topic of much debate at Wednesday’s hearing on the Pillard nomination. Both sides — the Democrats who want three new judges confirmed and the Republicans who deny the need for any additional judges — cited statistics and statements by judges and ex-judges.
But the Republicans seem to have the better case.
The court now has eight regular judges — four appointed by a Democrat; four by a Republican. In addition, it has six active senior judges. According to Chief Judge Merrick Garland, one of the senior judges carries a full case load, one carries 75 percent of an active case load, two carry 50 percent and two 25 percent. Moreover, the senior judges are young and healthy enough that none is planning to step down, and all can reasonably be expected to keep working for about a decade.
The current workload of the six senior judges translates into the equivalent of 3.25 judges. Thus, the court, in effect, has the equivalent of roughly 11.25 full-time judges.
Is that sufficient manpower? It appears to be. The number of consolidated cases scheduled for oral argument per active judge has fallen steadily, from 99 in 2003-2004 to 81 in 2012-2013. Indeed, Sen. Lee noted that the court has had to cancel argument dates because it doesn’t have enough cases.
The Democrats counter with statistics they say show an increasing number of “pending cases.” But the numbers cited by Sen. Grassley and others seem like a better measure of actual workload.
Moreover, statements by some current judges to Sen. Grassley confirm that the court doesn’t need more judges. One judge said:
I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . .If any more judges were added now, there wouldn’t be enough work to go around.
The Court does not need additional judges for several reasons. For starters, our docket has been stable or decreasing, as the public record manifests. Similarly, as the public record also reflects, each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.
Against this, the Democrats referred to letters from several heavy-hitters, including Chief Justice Roberts, that they say support the case for more judges. But the Republicans are on firmer ground because they are relying on statements from current judges on the court, including the Chief Judge.
At the end of the day, though, the Democrats’ case isn’t about workload; it’s about packing the court. The D.C. Circuit is considered the second most important court in the land. And it serves as one of the few remaining checks on a president who seeks to flout the law through executive orders, among other methods. It was the D.C. Circuit, for example, that first declared President Obama’s recess appointments to the National Labor Board unconstitutional. Obama’s answer is to send in reinforcements.
Senator Grassley and our friend Rep. Tom Cotton have proposed legislation to eliminate the three vacant judgeships from the D.C. Circuit. Grassley’s version of the legislation would move them to other circuits where judges are dealing with very high caseloads.
The Senate won’t pass this legislation, of course. But its merit may influence how Republicans treat the three pending nominations.
If, at the end of the day, there’s a compromise under which some but not all the nominees are confirmed, perhaps Pillard will be the first to be “cut.”