TO: Interested Parties
FR: Marge Baker, Executive Vice President, People For the American Way
DA: November 14, 2013
RE: Responding to False Claims on D.C. Circuit Court’s Workload
Senate Republicans have attempted to justify their mass filibuster of President Obama’s nominees to the U.S. Court of Appeals for the District of Columbia Circuit by claiming that the court’s workload does not justify filling its three existing vacancies.
The three main points that Senate Republicans and their allies use to back up this claim are all deeply flawed or downright false.
Here is the truth about the D.C. Circuit’s caseload.
Republican Claim #1 : The D.C. Circuit’s caseload has declined since the Senate confirmed President Bush’s nominees to 9th, 10th and 11th seats on the court.
The Facts: The nonpartisan experts within the federal judiciary who track and analyze federal court caseloads report that the D.C. Circuit’s workload has remained steady over the past decade.
Judge Timothy Tymkovich of the Tenth Circuit Court of Appeals, a George W. Bush nominee who heads the Judicial Conference's Standing Committee on Judicial Resources, which tracks the workload and personnel needs of federal courts, confirmed  to a Senate subcommittee in September that the D.C. Circuit’s caseload “has been relatively steady the past ten years or so.”
As a result, Tymkovich added, his committee hasn’t seen ”any reason to reevaluate” the number of designated judgeships on the court.
The Administrative Office of the U.S. Courts' records underscore this observation .
Republican Claim #2 : The D.C. Circuit has fewer total appeals filed than any other circuit court in the country, and the raw number of appeals filed annually before the D.C. Circuit has declined.
The Facts: The Judicial Conference has stated clearly that comparisons involving the raw number of cases filed are meaningless , because of the uniquely complex nature of the D.C. Circuit’s caseload.
The D.C. Circuit’s caseload is fundamentally different from that of every other federal appeals court, chiefly because it handles a uniquely high volume of extremely complex, time-consuming administrative appeals.
In his testimony in September, Judge Tymkovich noted  that the Judicial Conference uses a “different process” in evaluating the D.C. Circuit’s caseload than that of other circuits “because of the uniqueness of their caseload.”
The D.C. [Circuit] Court of Appeals has been excluded from the pure numerical standard. We employ a different process with that court, because of the uniqueness of their caseload. They have a heavy administrative practice. … Those cases have multiple parties, typically issues of first impression, big records, things that make them somewhat outliers [compared] to some of the cases we see in the other circuits. Some of those cases are exclusive jurisdiction in the D.C. court. So for that reason, we've excluded them from the same processes as the other circuits.
Raw filing numbers reveal little about the DC Circuit’s actual workload, because they indicate nothing about how complex those cases may be. The court could add or subtract 100 filings, but the impact on the court’s workload would be enormously different depending on how many of those are complicated administrative appeals. As Judge Tymkovich noted, although the court’s raw caseload numbers may go up and down, it’s workload has remained relatively steady over the past decade.
In fact, in the D.C. Circuit in the year ending June 30, the median time for cases from time of filing a notice of appeal until final disposition was 11.8 months, longer than every circuit but one. That is not a sign of an underworked court.
Republican Claim #3: D.C. Circuit judges report that if the Senate fills the court’s existing vacancies, “there wouldn’t be enough work to go around.”
The Facts: Republicans have taken an anonymous quote from an anonymous judge—and taken it wildly out of context.
Sen. Chuck Grassley claims that he has surveyed current D.C. Circuit judges and that an unspecified number have given him anonymous quotes supporting his blockade of President Obama’s nominees.
Putting aside the problem with basing public policy on anonymous quotes cherrypicked from an unspecified number of anonymous sources, the quote that Grassley trots out the most frequently doesn’t even say what he claims it says.
The real meaning of the quote Grassley uses is not at all what he suggests it is: The anonymous judge says the court does not need additional judgeships – that is, that Congress should not designate any new seats on the court, something that nobody is proposing to do. The quote that Grassley provided says nothing about filling the court’s existing vacant judgeships . Here is the full quote from the anonymous judge, according to Grassley:
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.