With Judge John Roberts’s elevation to the Supreme Court at the end of September 2005 and Judge Harry Edwards’s transition to senior status in November 2005, the D.C. Circuit has only nine judges on “active” status in its allotted twelve seats. There are, in other words, three vacancies. More than 2-1/2 years ago, Brett Kavanaugh was nominated to the vacancy that arose more than five years ago, when Judge Laurence Silberman took senior status in November 2000. No nominations have yet been made to the seats vacated by Roberts and Edwards.
Going back into the Clinton years, there has been some controversy whether the D.C. Circuit needs its full complement of 12 judges. It was even suggested by some at one point that 10 judges might be enough, though the Senate’s confirmation of Thomas Griffith as the 11th active judge in June 2005 shows that the Senate has rejected that position. It may still be the case that some Republican senators will maintain that there should be no more than 11 judges on the D.C. Circuit.
My earlier suggestion that the President might have reason to delay another D.C. Circuit nomination until Kavanaugh was confirmed was premised on my mistaken understanding that the next confirmed nominee would be the 11th judge on the court. Now that I recognize that there are only nine active judges, I see no reason for the White House to delay making another nomination.