Right’s Wobbly, Misleading Campaign to Block D.C. Circuit Nominations

October 22, 2013

by Jeremy Leaming

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.”

Like Grassley’s wobbly claims on the workload of the D.C. Circuit, the JCN infographic is a mishmash of misleading statistics and revealing rhetoric. The ninth graphic in the slideshow tells the real story. The right’s aversion to filling vacancies on the D.C. Circuit is all about ideology. Groups like JCN want a federal bench dominated by judges and justices devoted to reading the Constitution in the most cramped way possible. In general, the right wants judges to rule against efforts to advance equality and remain devoted to economic policy that protects the super wealthy and corporate America.

For example, JCN’s ninth graphic warns that "religious organizations" are fighting the Affordable Care Act’s policy that employers’ health insurance providers include access to contraceptives. There’s also a constitutional challenge to Dodd-Frank, the financial reform law mentioned above that the financial industry and the right-wing were successful in watering down before it become law and are still not satisfied. The graphic also notes the “extreme EPA agenda,” which must be stopped by the courts. (The D.C. Circuit is the place where myriad challenges to federal regulations are heard.)

The JCN’s slideshow is laughably transparent. It offers a few misleading numbers on the workload of the D.C. Circuit, but reveals the true agenda – we want courts packed with conservative jurists who don’t give a flip about liberty, but fight to protect interests of the super wealthy and corporate America.

For a realistic picture of the workings of the D.C. Circuit, see this column for The Washington Post from former Chief Judge of the D.C. Circuit Patricia Wald. (Wald served 20 years on the D.C. Circuit, five as its chief judge.)

“Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country,” Wald wrote. She also noted that the “number of pending cases per judge has grown from 119 in 2005 to 188 today” and that unlike the federal appeals courts, the D.C. Circuit’s cases take much longer to settle. The Court considers, she wrote, “the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases 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 records – all of which culminates in lengthy, technically intricate legal opinions.”

The CAC’s Judith Schaeffer, earlier this year, also scored Grassley for his tired claims about the D.C. Circuit workload and noted the hypocrisy of them. “As Senate Judiciary Committee Chair Patrick Leahy has observed, Senator Grassley and his Republican colleagues had no problems in 2005 confirming G.W. Bush nominees Janice Rogers Brown and Thomas Griffith to fill the 10th and 11th seats on the D.C. Circuit when the caseload per active judge was less than it is now.”

It is nonsensical to compare the workload of the D.C. Circuit to the other federal appeals court circuits, but that of course will not stop groups like the JCN from producing and disseminating farcical information trying to do so. Dig a little and you find this discussion has much more to do with constitutional interpretation than cases pending and closed.