New Jersey Senator Jon Corzine (D.) has offered the charge that the D.C. Circuit is frequently split 4-4 in its opinions (with the tacit assumption that this split is along party lines), and that Estrada could therefore tip the balance. However, if Senator Corzine actually examined the record of the D.C. Circuit, he would find that this simply is not true.
A few statistics help to demonstrate the fact that the D.C. Circuit is anything but an ideological hotbed:
A 1998 University of Virginia Law Review article by former Chief Judge Edwards (who happens to be a Democrat) noted that from 1995 to 1998, less than 3 percent of D.C. Circuit cases resulted in a dissenting opinion. Of those, less than half followed presumed party lines.
The Washington Post has reported that only 1 percent of cases decided in 2001 resulted in dissenting opinions. Indeed, the Washington Post has described the climate as a “love fest” of agreement:
A court once famous for its ideological divisions has become a love fest. As the partisans have been yelling about abortion, affirmative action and whether Bruce Lindsay has a right to counsel, its judges have been quietly discussing such questions as whether federal energy regulations are arbitrary and capricious — and they are overwhelmingly agreeing about the answers. — Washington Post, June 11, 2002.
As the Post quote demonstrates, the agreement on the D.C. Circuit is not limited to “easy” cases, but includes hot-button issues. The D.C. Court was unanimous in its en banc opinion in United States v. Microsoft — arguably one of the most significant antitrust cases of the last decade. Similarly, a D.C. Circuit panel including two Republicans and one Democrat ruled unanimously to uphold the Freedom of Access to Clinic Entrances Act, which criminalizes certain types of abortion protests.
The bottom line is that the alleged ideological rift does not exist. Simply pointing to the party that appointed a judge for proof of the ideological makeup or division of a court is plain silly — as evidenced by Republican Supreme Court Justices Brennan, Blackmun, and Stevens — each of which has staked out positions on the far ideological left of the Court.
Of course, if we take Senator Corzine’s argument to its logical conclusion, the president would not be able to appoint anyone to the D.C. Circuit for fear that it would throw off the 4-4 appointment balance (keeping in mind that the Corzine claim is not even rooted in the political party of the nominee, but rather of the President who did the nomination). Yet strangely enough, the Constitution does not require that the D.C. Circuit to be evenly divided on party lines.
Senator Corzine’s sloppy math would be laughable if it were not part a concerted effort to bring the judicial-nomination process to a screeching halt. This is not just a matter of “politics,” but affects the proper administration of justice. As the chief judge of the D.C. Circuit said at a recent Circuit Conference: “it is clear that the Senate’s inaction is coming to jeopardize the administration of justice in this Circuit.” That should be enough math tutoring for Mr. Corzine for the day, now perhaps the Senate can get on to the business of actually voting.
— Robert Alt is an adjunct fellow at the John M. Ashbrook Center for Public Affairs.