Amy K. Matsui, Senior Counsel and Director of Women and the Courts

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. 

This post was cross-posted from ACSBlog.

This week the Senate HELP Committee will vote on the nomination of Thomas Perez to be the next Secretary of Labor. In the midst of the many unfair and unfounded attacks lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex discrimination has also come under attack: disparate impact. Under Mr. Perez’s leadership as the Assistant Attorney General for Civil Rights at the Department of Justice, the Department has employed the longstanding disparate impact analysis to combat employment discrimination. Its application is not only legally sound, but exceptionally important to eliminate discrimination and further justice.

The Supreme Court and Congress have long made clear that Title VII of the Civil Rights Act “prohibits employers from using employment practices that cause a disparate impact” based on sex and other protected classes. The doctrine of disparate impact allows for a remedy when an employment practice that may be neutral on its face has an unjustified adverse effect on members of a protected class.

Disparate impact has been crucial to addressing entrenched discriminatory employment practices. Indeed, women’s entry into high-wage, nontraditional occupations has been made possible in large part by challenges to unfortunate employment practices that disproportionately disadvantage women, which would have otherwise remained unchanged but for the Title VII’s disparate impact doctrine. Courts, for example, have struck down height, weight or strength requirements implemented by employers in police departments, fire departments, in construction and in correctional facilities because the requirements were not related to job performance, but instead reflected stereotypes about the skills required for a position. Moreover, there are often alternative practices that may both satisfy job performance demands and allow for a diverse workforce.