by Kristine Kippins
In a recent piece for The Washington Post retired federal appeals court Judge Patricia M. Wald cogently explains why the Senate needs to confirm some judges for one of the nation’s most important courts – the U.S. Court of Appeals for the D.C. Circuit. Judge Wald served 20 years on that court five of them as its chief judge. In part of her argument that the Senate needs to fill vacancies on that court, she noted the court’s swelling caseload.
But swiftly after the column was published the National Review Online’s Ed Whelan left out or glossed over some facts to conclude that the numbers cited in Wald’s column were “fuzzy.”
Judge Wald’s column made a strong case against wobbly claims that the D.C. Circuit’s caseload is not high enough to warrant new judges. Whelan writes, “I don’t know what numbers Wald is using, but I suspect that she -- or whoever is feeding her the numbers -- may be using inconsistent denominators to generate the supposed growth.”
Whelan argues that the caseload per judge has not increased substantially since 2005. According to him, in 2005, there were 1,463 pending cases (as of September 30, 2005), which, divided by the nine judges who were active for the full year before September 30, 2005, equals 163 pending cases per active judge in 2005. In 2013, there are 1,315 pending cases (as of September 30, 2012), which, divided by the eight judges who were active for the full year before September 30, 2012, equals 164 pending cases per active judge in 2013. Thus concluding, the caseload per active judge has not actually changed.
The truth is that when Thomas Griffith was confirmed to the 11th seat on June 14, 2005, there were 1,313 pending cases in the Circuit (as of March 30, 2005). His appointment yielded 119 pending cases per active judge.
Now, there are only seven active judges on the D.C. Circuit, not the eight Whelan claims. He failed to note that Judge David Sentelle took senior status Feb. 12 of this year. When you divide the number of currently pending cases (1,315) by the seven active judges, you get 188 pending cases per active judge.
It makes far more sense to use the March numbers rather than the September statistics as there were 75 days between March 30 and Griffith’s confirmation, and 108 days between Griffith’s confirmation and the date Whelan uses. There is nothing inconsistent about Wald’s math. Whelan should concern himself less with using consistent denominators and focus more on using the correct ones.