Conservative Blogger’s Wobbly Take on D.C. Appeals Court’s Need for Judges

March 4, 2013

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.

What is indisputable is the Senate filled the 11th seat in 2005, bringing the caseload totals to 119 per judge. Yet now, there are senators who claim that they cannot fill the eighth seat in 2013 because the caseload has not increased since 2005. It is true, the caseload has not increased significantly since 2005; however the court has lost four of its judges since then. If an eighth judge were to be appointed, the caseload totals per active judge would be 164 – quite the difference between that and 119.

One should remember, as Wald notes, “The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives…. These cases can 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.” 

Whelan further claims Wald “overlooks the sizable contributions that the D.C. Circuit’s senior judges are making -- the equivalent, I’m told, of four active judges.” One must ponder from whom Whelan obtains his information.

Wald, with her 20 years of experience on that bench, has a different take on the workload of senior judges:

And while the D.C. Circuit has five senior judges, they may opt out of the most complex regulatory cases and do not sit en banc. They also choose the periods during which they will sit, which can affect the randomization of assignment of judges to cases.  

Senior judges make an invaluable contribution to the court, but the D.C. Circuit has 11 full-time judgeships based on the recommendation of the U.S. Judicial Conference after study of its caseload.  Not seven active judges with six senior judges. It is time the Senate did its duty and gave the Third Branch the resources to do theirs.

For more on information about the rising number of vacancies on the federal bench see