Scuttling a President’s ‘Popular Imprint’ on the Judiciary

May 22, 2013

by Russell Wheeler, Visiting Fellow, Governance Studies, The Brookings Institution

The U.S. Court of Appeals for the District of Columbia Circuit (CA-DC for short) has more vacancies, and a greater proportion of vacancies to judgeships, than any other federal appellate court. Appointees of President George W. Bush or his father hold four of the court’s 11 judgeships, and appointees of President Clinton hold three. Six senior judges, all but one Republican appointees, are on the draw but able to take reduced caseloads.

Senate Republicans and their press allies believe the status quo is basically fine. They refused to allow a vote on one Obama nominee, Caitlin Halligan, bowing to National Rifle Association claims that she’s too liberal to serve in the federal judiciary. They appear willing to allow a vote on a second Obama nominee, the very capable Srikanth Srinivasan, who has served in both the Bush and Obama Justice Departments.

But, they say, Srinivasan is enough. Why? The reason most commonly offered is that CA-DC doesn’t need more judges because it has a light caseload. Ranking Senate Judiciary Committee member Charles Grassley said, correctly, that its 108 filings per judgeship in 2012 was lowest in the country.

Others respond, just as correctly, that raw filings hardly tell the whole story of a court’s workload. It’s impossible to compare accurately the workloads of the 13 courts of appeals because the federal judiciary has developed no accurate way to “weight” different case types in those courts—as compared to the fairly sophisticated method for weighting district court caseloads.

But there is no doubt that CA-DC has a heavy docket of appeals from decisions of federal administrative agencies, appeals that do not benefit from initial review in the district courts. Former CA-DC chief judge Patricia Wald recently described them as “the most complex, time-consuming, labyrinthine disputes over regulations. . .cases [that] require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.”

Without getting too deeply into the statistical weeds, 43 percent of cases commenced in CA-DC in 2012 were agency appeals, versus 15 percent nationally. The Administrative Office of U.S. Courts’ table (B-3) on administrative appeals is not very revealing as to the sources of the appeals, reporting for each court all such appeals and then appeals from three agencies (the IRS, the National Labor Relations Board, and the Board of Immigration Appeals) with all others lumped into a catch-all “Other” category. But CA-DC’s “Other” agency appeals are 77 percent of all its agency appeals; for the other courts, collectively, “Other” appeals are only six percent of all agency appeals. A reasonable inference is that CA-DC gets large proportions of what are likely complex appeals from, say, the Environmental Protection Agency and the Federal Communications Commission.

But there’s more to the story than elusive workload numbers. The real reason that Senate Republicans and their allies don’t want Obama to appoint any judges to the court beyond Srinivasan is because they want to maintain the conservative jurisprudence that results from the dominance of the court’s active and senior status Republican appointees. Senator Grassley characterized his proposal to transfer two of the three CA-DC vacant judgeships remaining after Srinivasan’s confirmation to other courts of appeals and to eliminate the third vacant judgeship as efficiency moves, but that fooled no one who was paying attention.

A Wall Street Journal editorial didn’t beat around the bush. It said that Obama shouldn’t be able to appoint more judges to the court because that might redirect the court’s conservative jurisprudence, or in the Journal’s words, because “DC Circuit judges aren’t rolling over for Mr. Obama’s regulatory agenda.” In short, Srinivasan’s confirmation is all Obama deserves because CA-DC has low raw filings, so any effort by Obama to fill the other (congressionally authorized) vacancies is, to quote the Journal, “court packing.”

It’s not. Rather, Obama’s reshaping the court somewhat would illustrate what Chief Justice William Rehnquist in a 1996 address referred to as “a right way to go about putting a popular imprint on the federal judiciary.”

Rehnquist recounted FDR’s efforts to reverse the tide of anti-New Deal Supreme Court decisions by proposing that Congress authorize additional justices for those older than 70. He decried Roosevelt’s effort but noted that Roosevelt was able to end the Court’s resistance to the New Deal through the appointment process. In other words, “the doctrine of judicial independence does not mean that the country will be forever in sway to groups of non-elected judges. When vacancies occur … on any of the federal courts, replacements are nominated by the President, who has been elected by the people of the entire nation, and subject to confirmation by the Senate, whose members have been elected by the people of their respective states. Both the President and the Senate have felt free to take into consideration the likely judicial philosophy of any nominee to the federal courts. Thus, there is indirect popular input into the selection of federal judges.” (And not to belabor the point but today’s Senate is malapportioned, with a Republican minority, and no D.C. senators.)

What FDR proposed was court packing. Letting Obama fill statutorily authorized vacancies is not. It is what Rehnquist called a right way to put a popular imprint on what the Journal rightly called “arguably the most important appellate court below the Supreme Court.”

Transferring judgeships to courts that need them from courts that need them less is not bad public policy per se. But the Congress should weigh those respective needs based on the principled, non-partisan analysis of the Judicial Conference, not out of an ideological desire to frustrate any president’s judicial appointments prerogatives.