Sen. Leahy Fires Back at Proponents of Cutting D.C. Circuit Judgeships

June 18, 2013

by Jeremy Leaming

As some Senate Republicans continue to argue for removal of judgeships from the powerful U.S. Court of Appeals for the District of Columbia Circuit, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) is pushing forward for consideration of President Obama’s recent nominations to fill three vacancies on the Court.

Sen. Leahy announced yesterday that he is planning for a July 10 hearing before the Committee to consider one of the president’s nominees Patricia Ann Millett, a longtime appellate attorney who has earned the ABA’s highest rating. In announcing the hearing, Leahy took on Republicans’ claims that the D.C. Circuit has a light caseload and that the three current vacancies do not need to be filled. Sen. Chuck Grassley (R-Iowa) has introduced a bill to strip judgeships from the D.C. Circuit and move them to other federal appeals court circuits. As the Constitutional Accountability Center has noted, Grassley’s measure has nothing to do with careful restructuring of the federal appeals court bench, and everything to do with obstructionism.

Leahy’s June 17 statement noted that some of the same Republicans now calling for judgeships to be stripped from the D.C. Circuit argued during George W. Bush’s administration the Circuit “should have 11 judgeships” and they voted to confirm his nominees for the “ninth, tenth, and eleventh seats ….” Leahy then ticked off a number of judicial nominations to other federal appeals courts that Republicans slow-walked, showing no concern about caseloads for those courts.

“The American people are not fooled,” Leahy said. “Senate Republicans are playing by different rules. In the past 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage.”

That advantage has served the interests of the Republican Party. As the D.C. Circuit is currently situated, it has a decisively right-wing tilt and has issued opinions harmful to workers’ rights, the environment and one widely panned opinion on the president’s power to use recess appointments to fill judicial and executive branch vacancies. That opinion, in Noel Canning v. NLRB, has been appealed by the administration.

It’s no wonder that Republicans are striving to thwart the administration’s efforts to fill vacancies on the D.C. Circuit, which hears myriad cases involving government regulations that corporate America often fights. Sen. Grassley and too many of his cohorts in obstruction are brashly clinging to a wobbly and hypocritical argument in an attempt to hold the status quo.

Earlier this month, The Huffington Post’s Jennifer Bendery noted some of the other Republicans now arguing against filling vacancies on the D.C. Circuit. Sen. Tom Coburn (R-Okla.) said, “You don’t need any more in the circuit. It’s the most underworked circuit in the country.”

Sen. Roy Blunt (R-Mo.) told Bendery, “We all know that the D.C. court has too many judges on it. It’s not a busy court.”

Leahy and others have fired back against those accusations. In April, Leahy noted, the Judicial Conference of the United States, which is led by Chief Justice John Roberts, sent recommendations to the senators based on caseload needs. “They did not recommend stripping judgeships from the D.C. Circuit but stated that they should continue at 11.” 

Patricia Wald, who served on the D.C. Circuit for 20 years, including 5 as its chief judge, has also knocked the claim that the Court has a thin caseload. In her piece for The Washington Post, she noted the “number of pending cases per judge has grown from 119 in 2005 to 188 today.”

TPM’s Sahil Kapur reports today that not all Republicans are on board with trying to scuttle the president's D.C. Circuit Court nominees. Sen. John McCain (R-Ariz.) said the three nominees deserve votes on the Senate floor.

Obama’s other nominees to the D.C. Circuit are Nina Pillard, a law professor at Georgetown Law Center, and Judge Robert Wilkins, who serves on a federal district court.