Last week’s D.C. Circuit ruling against the HHS contraception mandate – a blow to the President’s unconstitutional religious-liberty agenda – has highlighted one more reason to stop President Obama’s court-packing plan; if it succeeds, the court will be much less likely to have such rulings. Thankfully, as Ed Whelan reported last week, the Senate cloture vote over Patricia Millett’s D.C. Circuit nomination failed by five votes, and I expect the same result if Senator Reid files for cloture over D.C. Circuit nominee, Nina Pillard. As Carrie said today, Senate Republicans deserve a lot of credit for their courage and remarkable unity during this fight. They haven’t backed down despite the Left’s onslaught, including Senator Reid’s empty threats over the nuclear option.
This unity has worked the activist Left into a frenzy, as they have tried to invoke, ex nihilo, fears of a judicial-nominations crisis. Nan Aron of the Alliance for Justice is emblematic of this tactic. Ms. Aron transparently wants to see the D.C. Circuit become a rubber stamp for a leftist agenda – she once complained that the “the majority [on the D.C. Circuit] has made decisions that have frustrated the president’s agenda” – and but has also tried to camouflage her effortsby claiming she’s only “ensur[ing] that our judicial system is healthy and fully able to do its job.” In doing so, Ms. Aron is pushing a few myths about the D.C. Circuit that are worth exposing.
Ms. Aron regularly cites how many pending cases the D.C. Circuit has, in a futile attempt to show that it’s over-worked. However, as my colleague Carrie Severino testified last week, citing pending cases “doesn’t make a lot of sense here, unless you’re trying to find the one statistic [on workload] where the D.C. Circuit isn’t dead last compared to other circuits.” As Carrie explained, some of the pending cases might be currently inactive – and therefore irrelevant for determining the court’s workload – and others could just be taking a longer time for the parties to complete their motions. The reality is, the D.C. Circuit can’t be overworked because they are actually regularly canceling oral arguments. As has been repeatedly pointed out, by any other statistical measure – such as appeals filed, which measures the number of new cases each year, or appeals terminated, which is how many cases the court disposes of each year – the D.C. Circuit is significantly underworked. As one D.C. Circuit judge said, “If any more judges are added now, there won’t be enough work to go around.”
Myth Two: The D.C. Circuit is overworked because the court has a more difficult caseload.
Myth Three: The D.C. Circuit is operating at less than full capacity.
Ms. Aron tries to make much of the D.C. Circuit’s three unfilled judgeships (out of 11 allocated seats), by claiming that the court is “forced to do its job with 27 percent of its seats empty.” While Ms. Aron is technically correct, she leaves out the work of senior status judges. As D.C. Circuit’s chief judge has pointed out, when you consider the contributions of the court’s senior judges, the court has the equivalent of 11.25 judges covering its workload, which could hardly represent “send[ing] less than a full team into the game.” What’s more, even only considering the work of the eight active judges, the D.C. Circuit will alway have enough to send a “full team,” out to “play” – panels on the D.C. Circuit only require three judges, and the court isn’t playing a long enough “game” to justify a deeper “bench.”
Myth Four: The D.C. Circuit needs new confirmed judges because the Judicial Conference did not recommend a reduction in the D.C. Circuit’s size.
As Ms. Aron characterizes it, the Senate should confirm President Obama’s judges because the Judicial Conference – which is chaired by Chief Justice John Roberts – hasn’t said the D.C. Circuit should be officially shrunk down to its current de facto size. However, the Judicial Conference has given no indication that it would recommend removing a judgeship in almost any situation (and can you name any branch of government that would recommend its downsizing?). For example, even though the D.C. Circuit lost one authorized judgeship in 2008, the conference did not recommend reducing the D.C. Circuit’s size in the two years leading up to that change. If the Judicial Conference did not recommend to eliminate an authorized judgeship then, why would it now? This is especially true because as of 1997, the conference adopted an especially high threshold to recommend eliminating a judgeship, saying “it will not recommend elimination of judgeships except in circumstances where the situation in a court is unlikely in the foreseeable future to support the need for the current number of judgeships” (emphasis mine).
So how can we resolve this controversy? Senator Portman’s Politico op-ed last week laid out the best path forward: legislation that puts Republicans’ money where their mouth is by being willing to prevent both Democrat and Republican presidents from filling these unnecessary judgeships:
With a full complement of judges needed to conduct the court’s business and an even partisan balance (four active judges were appointed by Democrat presidents and four by Republican presidents), now is the time to put these political battles behind us for good. That’s why I’ve cosponsored the Court Efficiency Act, which transfers two authorized judgeships from the D.C. Circuit to other courts that do have busy dockets and need them and eliminates a third as a cost-saving measure.
Even after limiting the D.C. Circuit to its current eight active judges, it will still only be roughly half as busy as the median federal appeals court. Transferring these D.C. Circuit judgeships is not only justified by the court’s relatively light caseload and the needs of other circuits, it would also help bring about a reasonable end to the destructive partisan fights to which both parties have contributed. President Obama may still nominate judges immediately to fill the seats; they will simply serve on federal appeals courts that actually need more judges.
America’s courts were designed to be non-political, to render decisions based on the merits of each case rather than partisan considerations. Likewise, vacancies should be filled based on judicial needs rather than a political agenda, and partisan fights should end at the courthouse door. These institutions — and the trust the American people place in them — are simply too important to do otherwise.