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.
President Obama’s three pending nominees to the D.C. Circuit will not stack the court; rather they will fill three existing vacancies with much-needed, qualified candidates. With these three vacancies filled, there will be nine Republican nominees and eight Democratic nominees on the bench, significantly remedying the current unbalance.
A complete list of judges on the D.C. Circuit:
8 Active Judges
- Janice Rogers Brown, Nominated by George W. Bush, Confirmed June 8, 2005
- Merrick B. Garland, Nominated by William Clinton, Confirmed March 19, 1997
- Thomas Beall Griffith, Nominated by George W. Bush, Confirmed June 14, 2005
- Karen LeCraft Henderson, Nominated by George H.W. Bush, Confirmed June 28, 1990
- Brett M. Kavanaugh, Nominated by George W. Bush, Confirmed May 26, 2006
- Judith Ann Wilson Rogers, Nominated by William Clinton, Confirmed March 10, 1994
- Srikanth "Sri" Srinivasan, Nominated by Barack Obama, Confirmed May 23, 2013
- David S. Tatel, Nominated by William Clinton, Confirmed October 6, 1994
6 Senior Judges
- Harry Thomas Edwards, Nominated by Jimmy Carter, Confirmed February 20, 1980
- Douglas Howard Ginsburg, Nominated by Ronald Reagan, Confirmed October 8, 1986
- Arthur Raymond Randolph, Nominated by George H.W. Bush, Confirmed July 13, 1990
- David Bryan Sentelle, Nominated by Ronald Reagan, Confirmed September 9, 1987
- Laurence Hirsch Silberman, Nominated by Ronald Reagan, Confirmed October 25, 1985
- Stephen F. Williams, Nominated by Ronald Reagan, Confirmed June 16, 1986