Bench Memos

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Patricia Wald’s Fuzzy Math?


In an op-ed in today’s Washington Post in which she urges the Senate to act on two pending nominations to the D.C. Circuit, former D.C. Circuit judge Patricia M. Wald makes the surprising assertion that the “number of pending cases per judge [in the D.C. Circuit] has grown from 119 in 2005 to 188 today.” 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.

According to the official United States Courts statistics, the total number of pending appeals in the D.C. Circuit as of September 2005 was 1,463, and the total number as of September 2012 was 1,315. If Wald’s own totals were similar to these, it would seem that she divided the 2005 total by the number of total judgeships, including vacancies (1463/12=122, very near her 119 figure), but that she divided the 2012 total by the number of active judges (1315/7=188) now on that court.

My quick review indicates that there were nine active judges on the D.C. Circuit throughout the year ending in September 2005 and that there were eight active judges throughout the year ending in September 2012. Applying a consistent denominator to the total number of pending appeals yields 163 per active judge for 2005, versus 164 per active judge for 2012.

So much for a dramatic increase in per judge workload. So much for an urgent need to confirm more judges.

I’ll add that my research assistant informs me that a Westlaw search indicates that the total number of opinions published by the D.C. Circuit each term (Sept. 1 to Aug. 31) has fallen from 313 in the 1995-96 term to a mere 195, 202, and 201 for the three most recent terms. There were 11 active judges in the 1995-96 term. To have the same number of published cases per active judge now would mean having, lo and behold, seven active judges—the current number of active judges after Judge Sentelle’s taking senior status three weeks ago.

I’ll also emphasize that the above analysis completely overlooks the sizable contributions that the D.C. Circuit’s senior judges are making—the equivalent, I’m told, of four active judges. By contrast, there was only one senior judge in the 1995-1996 term. So it would seem that the current D.C. Circuit active judges have, on a per judge basis, roughly 2/3 the burden that Wald and her colleagues bore in the 1995-1996 term.

(It’s quite possible that I’ve made some errors in quickly compiling this data or in trying to make apples-to-apples comparison. I welcome any comments and corrections.)


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