Proponents of blocking President Obama from being able to fill the three vacancies on the D.C. Circuit rely on a number of thoroughly discredited arguments. One of their favorites is that the court doesn't have nearly enough cases to warrant filling all the vacancies, based on a comparison with the caseloads of other circuit courts. When Chuck Grassley introduced his court-rigging bill earlier this year, he justified it with chart directly comparing the D.C. Circuit's caseload with that of other circuits. The Judicial Crisis Network has trotted out a similar chart.
Since the argument has been repeatedly and thoroughly discredited, some Republicans are looking for a new way to present the transparently bogus argument. Both Rob Portman and Lamar Alexander said yesterday that the D.C. Circuit's caseload is "less than half the national average."
They seem to be hoping that folks aren't paying much attention, so they won't recognize that as exactly the same discredited assertion phrased in a different manner. But they're still directly comparing apples and oranges.
It's kind of like when they say President Obama is "packing the court," when what they mean is that "a Democratic president is fulfilling his constitutional obligation to nominate people to vacant judgeships that Congress has created, and we want to find some way of discrediting that because we don't respect the results of the presidential election or the constitutional norms that have governed this country from its founding."
I guess I can understand why they devise misleading talking points instead of just coming out and saying what they mean.