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Sorry, Senator Grassley, We Need More Judges on the D.C. Circuit

The Senate Judiciary Committee unanimously approved the nomination of Sri Srinivasan to the D.C. Circuit Court of Appeals at its executive business meeting last Thursday. Lest anyone become confused and interpret this bipartisan support as a sign that the determined obstruction that has kept all four vacant seats on the D.C. Circuit empty might relent, Senator Grassley proposed in his opening statement that the Committee hold hearings on the D.C. Circuit's workload "before we move on any further D.C. Circuit nominations, beyond that of the current nominee." This follows on the heels of Senator Grassley's introduction of legislation that would, in defiance of reality, recent history, and the reasoned judgment of the United States Judicial Conference, strip the D.C. Circuit of three seats. Instead, the "Court Efficiency Act" would add two seats to other circuits (one to the Eleventh and one to the Second). 

First, the facts. There are currently four vacancies on the D.C. Circuit, one of which (and the seat to which the highly qualified Caitlin Halligan was nominated) has been vacant since Chief Justice Roberts was elevated in 2005. In addition to lacking over one-third of its authorized judges, the Circuit's specialized and complex caseload definitely justifies filling the rest of the current vacancies. As Chief Justice Roberts has written, one-third of D.C. Circuit appeals are from agency decisions. Often, these administrative law appeals have enormous documentary records, implicate complex statutes and agency guidance, and may involve numerous parties and amici curiae — making them far more time-consuming than other types of cases. In any event, since the last judge was confirmed to the D.C. Circuit (Thomas Griffith, in 2005), the caseload has increased more than 50% from 119 pending cases per active judge to 188 pending cases per active judge. 

Second, the history. It is astonishing that President Obama has not yet had a single nominee confirmed to this important court. In contrast, President George W. Bush had four judges confirmed, President Clinton and the first President Bush each had three, and President Reagan had a staggering eight judges confirmed. Indeed, in the face of the repeated filibusters of the eminently qualified Caitlin Halligan (and the threatened filibusters of half a dozen of President Obama's Executive Branch nominees) it is difficult to interpret the assertions of Senator Grassley and his colleagues as anything other than partisan obstruction. 

Third, the experts. The United States Judicial Conference is explicitly tasked with evaluating the workload of different courts and recommending on that basis whether courts should add  or subtract  judges to meet those workloads. Most recently, the Judicial Conference recommended adding four judges to the Ninth Circuit and one to the Sixth Circuit. Strangely enough, the Conference neither suggested removing judges from the D.C. Circuit nor adding judges to the Second or Eleventh Circuits, as Senator Grassley's legislation proposes. See paragraph above for how to interpret Senator Grassley's proposal accordingly. 

So let's agree to call out this preemptive filibuster threat for what it is: a naked attempt to keep what is widely considered the second-most important court in the country barely functioning and, more importantly, keeping all who rely on the courts for justice from receiving the timely and well-reasoned judgments to which they are entitled. The D.C. Circuit is woefully understaffed and needs all the judges that have been authorized to that court. And people around the country are waiting for justice.