Earlier today, PFAW criticized Sen. Chuck Grassley's transparent plan to prevent President Obama from ever being able to restore balance to the DC Circuit Court of Appeals, which tilts heavily to the far right after eight years of ideological appointments by George W. Bush. Senate Republicans have not allowed President Obama to get even one judge on this circuit, because they recognize it as a powerful tool to issue sweeping rulings unmoored from the law or common sense and against the interests of ordinary people. As a result, judges who depart or take senior status have not been replaced, and not more than a third of its 11 seats are vacant.
Grassley claims the DC Circuit's caseload is so low that three of its vacant seats should simply be eliminated, thereby enshrining the current far right majority. His "reasoning," if it can be called that, is that if you calculate how many cases there are per judgeship – not per actual judge, but per judgeship, even if it is vacant – then the resulting number is so low that some of those judgeships must be eliminated.
What Grassley leaves out is that the cases heard by the DC Circuit are on balance far, far more complex than cases in other circuits. So it makes no sense to compare the number of cases without looking at other factors. Congress has deliberately created a unique role for the DC Circuit, making it the exclusive court to consider appeals of a wide variety of federal actions. Even when the law allows parties to go to a different circuit, they often choose the DC Circuit because of its recognized expertise in complex administrative matters. So the cases heard by the DC Circuit are, on average, far more complex than the cases heard by other circuits.
Not surprisingly, then, it takes longer for a case to be decided in the DC Circuit than it takes in the majority of other circuits. For instance, according to the Administrative Office of U.S. Courts, it takes nearly 50% longer on average for a case to go through the DC Circuit than the Eleventh Circuit, yet Grassley's bill would give one of the former's stolen judgeships to the latter. And he calls this the Court Efficiency Act!
With a vacancy crisis of historic proportions closing the doors of justice to more and more Americans, none of our circuits should be stripped of judgeships.
If you want to know the real reason Grassley is trying to freeze the DC Circuit into place, read PFAW's report America's Progress at Risk: Restoring Balance to the D.C. Circuit Court of Appeals. It talks about how in areas ranging from environmental protection to workers' rights to Wall Street reform to consumer health and safety, the skewed DC Circuit can be counted on to issue ideological rulings reflecting deep hostility to the ability of the American people to use the power of government to address major problems that cannot effectively be addressed otherwise. No wonder Grassley's bill is being co-sponsored by Republicans senators like Orrin Hatch, Jeff Sessions, Mike Lee, and Ted Cruz.