The D.C. Circuit is unbalanced. Nine of the D.C. Circuit justices were appointed by Republican presidents, whereas only five were appointed by Democratic presidents. Some observers have misleadingly focused on the fact that of the eight active judges on the court, four were appointed by Democratic presidents and four were appointed by Republican presidents. However, this metric fails to take into account the six senior status judges who play a weighty role in the court’s decision making. Except for participating in en banc hearings, senior status judges are full-fledged members of the judiciary and routinely impact the court’s decisions.
In a recent House Judiciary Committee hearing, Chairman Goodlatte (D-Va.) cited the six senior status judges as doing the work of an estimated 3.25 full-time active judges. Senator Grassley also stressed the senior judges’ relevancy on the court, saying that “it is clear that the senior judges on the court are contributing a significant amount of work, and will continue to do so for the foreseeable future.”
An example of senior judges’ participation in a high-profile case is Gilardi v. U.S. Dept. of Health & Human Services, a challenge to the Affordable Care Act’s contraception mandate, decided on Nov. 1. The case was before a three-judge panel comprised of Judge Brown and two senior judges, Judge Edwards and Judge Randolph. Undoubtedly, senior judges wield significant power and are still active decision-makers on the court. Looking at the Court’s fall calendar, most cases will be heard by a panel that includes at least one senior judge, so not including them when describing the court’s composition is deceptive.
After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.
Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.
When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits.
The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”
Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”
To hear Ranking Senate Judiciary Committee member Sen. Chuck Grassley (R-Iowa) tell it, the Senate is not the chamber where noncontroversial judicial and executive branch nominees languish.
Yesterday when the Senate confirmed Gregory Phillips to a seat on the U.S. Court of Appeals for the Tenth Circuit, Grassley crowed in a press statement that “the Senate is processing the President’s nominees exceptionally fairly. President Obama is certainly being treated more fairly in the beginning of his second term than Senate Democrats treated President Bush in 2005. It is not clear to me how allowing more votes so far this year than President Bush got in an entire year amounts to ‘unprecedented delays and obstruction.’”
Grassley has long argued that there is no obstruction of judicial nominees in the Senate, that vacancies on the federal bench have remained high because the president has been slow to put forth nominees and that one of the most powerful federal appeals court circuits is not all that busy, so it should be stripped of three judgeships. All of these assertions are beyond wobbly, they’re intentionally misleading. Grassley’s arguments for yanking judgeships from the U.S. Court of Appeals for the District of Columbia Circuit are especially obnoxious, aimed at trying to ensure that the D.C. Circuit remains tilted to the right for as long as possible.
Despite the nominations that have been confirmed this year, there remain more than 80 vacancies on the federal bench, for a reason. Many of this year’s confirmations for example, should have happened in the previous Congress. Instead, the president’s judicial nominees have endured a significantly longer and divisive path to confirmation than Bush’s.
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.
The National Labor Relations Board (NLRB) is the agency that protects the rights of private sector employees to join together to improve their wages and working conditions. Until the Senate confirms President Obama’s nominees to the NLRB, employees’ rights and our economy are at risk.
The NLRB stopped functioning properly in late January when the D.C. Circuit invalidated the recess appointments of two of the three current Board members in Noel Canning. With only one valid member appointed, the court concluded, the Board had lost quorum. Since this ruling, employers have challenged the agency’s authority at every level.
The validity of the recess appointments is unclear. The issue is pending before several other circuit courts, and Noel Canning was appealed to the Supreme Court. However, assuming the Supreme Court grants review, a decision is unlikely before next year.
Following Noel Canning, President Obama re-nominated the two recess appointees, both Democrats. And in April, the president made three more nominations, includingtwo Republicans and the current Chairman, a Democrat. The Chairman’s current term will expire on August 27, 2013, unmistakably leaving the Board without a quorum if there are no appointments before that time. If Senate confirms all nominees, there will be a full, five-member Board.
In the meantime, the Board continues to issue decisions with the recess appointees, but unfair labor practices largely remain unremedied. This is because orders of the NLRB must be enforced by circuit courts, and all parties have the option to appeal to the D.C. Circuit.