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Bench Memos

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Putting the D.C. Circuit Vacancies in Context—Part 1



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The New York Times reports that, in the immediate aftermath of the confirmation of Sri Srinivasan to the D.C. Circuit, President Obama will soon make three more nominations to the D.C. Circuit, in “a move that is certain to unleash fierce Republican opposition and [that] could rekindle a broader partisan struggle over Senate rules.”

There is no neutral principle that justifies the Obama administration’s sudden rush on the D.C. Circuit. The D.C. Circuit may well be the most underworked court in the country. Further, with Srinivasan’s appointment, the D.C. Circuit now has the equivalent of 10.5 11.25 full-time judges—eight judges in active service, together with six senior judges whose workloads (I’m reliably informed) add up to 2.5 3.25 full-time equivalents. [1 p.m. corrections in preceding sentence.] So while it is currently authorized 11 judgeships, it will basically be operating at that level without the need of any further appointments.

If the White House were seriously interested in relieving the judicial workload, it would presumably be giving high priority to the “judicial emergencies” identified by the Administrative Office of the U.S. Courts. The three D.C. Circuit vacancies are not included among the 32 existing judicial emergencies. Further, it’s striking that of those 32 judicial emergencies, the White House has made nominations to only eight of those seats, and four of those eight nominations were made just this month. Of the remaining 24 judicial emergencies for which the White House has made no nomination, vacancies have existed for periods as long as:

3,071 days

2,706 days

1,641 days

1,590 days

1,570 days

1,238 days

1,225 days

939 days

877 days

728 days

688 days

606 days

604 days

What good reason is there for the White House to be neglecting these judicial-emergency vacancies and instead to be pressing nominations for non-emergency vacancies on an underworked court? One of the D.C. Circuit vacancies has existed for only 95 days. The oldest of the three—for the seat John Roberts vacated to become Chief Justice—is indeed quite old (2,799 days), but the fact that then-Senator Obama and his fellow Senate Democrats blocked President George W. Bush’s nomination of Peter Keisler, an outstanding candidate who won remarkable bipartisan acclaim, amply demonstrates that they perceived no urgent need to fill that seat.



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