by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School
In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.
Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.
While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”
While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.