People For the American Way

Right Wing Recycles Discredited Arguments on DC Circuit

The far-right Judicial Crisis Network is recycling old, discredited arguments in a new infographic to justify blocking any D.C. Circuit nominee nominated by President Obama, regardless of who it is. When George W. Bush was president, this same group was called the Judicial Confirmation Network, with a mission to "ensure that … every nominee sent to the full Senate receives an up or down vote." With a Democrat in the White House, they did a complete 180, which is already a warning not to take their arguments too seriously. So it is no surprise that their new infographic falls apart under scrutiny.

It starts off by accusing President Obama of "court packing." That term refers to FDR's efforts to create new seats on the Supreme Court which he would fill with like-minded jurists. President Obama, in contrast, is being accused of court packing for daring to nominate individuals to fill existing vacancies on the DC Circuit. That is called "fulfilling your constitutional duty as president."

The JCN's infographic then compares the caseload per-judgeship of the DC Circuit to other circuits, using the raw number of terminated cases in the year ending September 30, 2012. They even have a graph showing that other circuits have higher numbers and trumpeting that the D.C. Circuit is "the most underworked court in the country." However, because of the D.C. Circuit's uniquely complex caseload, the JCN is comparing apples and oranges.

That's the conclusion of none other than the chair of the Judicial Conference's Standing Committee on Judicial Resources, which analyzes courts' caseloads and makes recommendations concerning how many judgeships are needed to get the work done. Tenth Circuit Judge Timothy Tymkovich – a conservative who was nominated to the bench by George W. Bush – discussed this at a Senate committee hearing last month. He specifically explained why the D.C. Circuit's caseload is different from other circuits, so much so that the raw-number caseload statistics used for other circuits are not relevant to ascertaining the D.C. Circuit's 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. They have something like 120 administrative appeals per judgeship panel, versus about 28 for the other Courts of Appeals. So historically, those types of cases have driven a more complex and difficult evaluation. 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.

I might add they haven't asked for a new judgeship in the last 20-plus years or so. They lost one to transfer [in 2008]. And their caseload has been relatively steady the past ten years or so, so we haven't seen any reason reevaluate that because their caseload is about where it was ten years ago.

So who are you going to trust on the matter of comparing the D.C. Circuit's caseload to that of other circuits – the chair of the Standing Committee on Judicial Resources, or the Judicial Confirmation Crisis Network?

Then, changing its definition of caseload to cases filed instead of cases terminated, JCN posits that the D.C. Circuit's caseload was smaller in September 2005 (when Republicans pushed through confirmations to the tenth and eleventh seats, which was actually in June) than the September 2012 figure. Now they want to keep the court capped at eight judges. What they conveniently leave out is that – using their own definition – the caseload is now higher (as of June 30) than it was in 2003 when Republicans worked to fill the ninth and tenth seats. And if you look at the number of administrative filings per panel – the statistic specifically cited by Judge Tymkovich – the current number of 110 is higher than it was in 2003 and comparable to the 2005 figure.

Also, it should be noted that for the D.C. Circuit, the number of pending cases over time better measures comparative caseload than the number of raw filings, since it better takes into account the difficulty of cases. An increase in filings doesn't tell you anything about the complexity of those filings, but an increase in pending cases even if there are fewer filings suggests that the court may be dealing with more complex cases that build up because they take longer to process. As these two PFAW infographics show, the D.C. Circuit has more pending cases now than in 2003 or 2005 when Republicans pushed to fill the ninth, tenth, and eleventh seats.

The JCN also has a purported quote from "one D.C. Circuit judge" suggesting that the court may not need additional judges. This is an anonymous quote trotted out during the summer by Chuck Grassley, the Judiciary Committee's senior Republican. He did not say which judge supposedly said this. Nor was he willing to enter into the record the written message in which this was supposedly said, so we don't even know if it was about filling existing vacancies or about adding new judgeships. We also don't know what other questions the judges may have responded to, with responses that might actually undercut the right-wing talking points. I'd prefer a United States Senate that bases its actions on public testimony from experts provided under oath rather than carefully clipped anonymous statements provided without context.

Next, the JCN argues that the D.C. Circuit, with only eight of its eleven seats filled, actually has more judges than it needs because of the contributions of senior judges, who provide the work of 3.5 additional judges. That means the court really has 11.5 judges, when it only needs 11. How often have right-wingers in or out of the Senate demanded that nominees to existing vacancies be filibustered because the court's workload is being met through the work of senior judges? They've pulled this new requirement for analyzing court vacancies out of thin air. A rule that is made up and applied only when politically convenient is generally not an indication of high principle.

Currently, including senior judges, the court is dominated by conservatives who often put their far-right ideology over the law. This pleases the right, and they will say whatever they have to to justify blocking a Democratic president from changing the status quo.


D.C. Circuit, D.C. Circuit Court of Appeals, Judicial Confirmation Network, Judicial Crisis Network, judicial nominations, Lower Federal Courts, Obstruction, Obstructionism