Even worse, the president’s recent nomination spree risks politicizing an institution that is — and should be — above politics. More than any other court, the D.C. Circuit considers petitions for review of federal agency rules and orders — some of the most important and least glamorous cases in the federal judiciary. To its credit, the court has, for the past two decades at least, fulfilled this important role thoughtfully, quietly, and with collegiality, a trait that manifests itself, [former D.C. Circuit Chief] Judge Harry Edwards has written, when “judges have a common interest … in getting the law right,” and as a result, “are willing to listen, persuade and be persuaded, all in an atmosphere of civility and respect.” . . .
That collegiality would likely be lost if the Senate were to confirm three more unneeded judges. First, judges appointed to prop up the president’s regulatory agenda historically end up actually doing so out of misplaced loyalty. In his early years on the court, Judge Edwards “witnessed occasions when ideology took over and effectively destroyed collegiality, because the confirmation process ‘promoted’ ideological commitment.” As proponents of the current nominations have noted, it is no accident that Mr. Obama’s recent nomination barrage followed his promise that “if Congress won’t act” on climate change, “I will.”
But more fundamentally, bloating the bench would undermine the close working relationship that contributes to collegiality. “[S]maller courts,” Judge Edwards has noted, “tend to be more collegial.” Absent a growing caseload, it is hard to justify the risk of factionalism inherent in larger courts, like the famously dysfunctional Sixth Circuit with its 28 active and senior judges. It would be a tragedy to lose the D.C. Circuit’s collegiality and objectivity that have served our country so well since Judge Edwards‘ reforms two decades ago.