Bench Memos

Re: Patricia Wald’s Fuzzy Math

On the American Constitution Society’s blog, Kristine Kippins tries to take issue with my recent post that contested former D.C. Circuit judge Patricia Wald’s dubious claim about a dramatic rise in the D.C. Circuit’s caseload since 2005. But Kippins engages in rank flimflammery.

Comparing the most recent data from September 2012 to the comparable data from September 2005, I pointed out that “the total number of pending appeals yields 163 per active judge for 2005, versus 164 per active judge for 2012.” Kippins faults me for supposedly “fail[ing] to note that Judge David Sentelle took senior status Feb. 12 of this year,” thus reducing the number of active judges going forward to seven. But her claim is both wrong and irrelevant: I specifically noted “Judge Sentelle’s taking senior status three weeks ago,” and that change doesn’t bear on the apples-to-apples comparison of September 2012 to September 2005. Further, as I showed, the total number of opinions published by the D.C. Circuit has fallen so much since 1995 that “hav[ing] the same number of published cases per active judge now would mean having, lo and behold, seven active judges.”

Kippins, evidently channeling Wald, asserts, “The truth is that when Thomas Griffith was confirmed to the 11th seat on June 14, 2005, there were 1,313 pending cases in the Circuit (as of March 30, 2005).” It’s bad enough that Kippins is counting Griffith against statistics “as of March 30, 2005,” when he didn’t join the court until the end of June. (He was commissioned on June 29, not on his confirmation date.) But even statistics as of the end of June wouldn’t take into account that Griffith couldn’t possibly have had an impact on the pending caseload right upon joining the court. Even more glaring is Kippins’s omission of the fact that the tenth judge, Janice Rogers Brown, joined the court on June 10, 2005. In other words, there were nine, not eleven, active judges as of March 30, so the caseload per active judge even under Kippins’s cherrypicked data was 146, not 119.

(Indeed, there was never a time during 2005 when there were eleven active judges operating at full speed: In addition to the fact that Griffith and Rogers were just getting started in June, John Roberts’s nomination to the Supreme Court in July consumed most of his time and attention until he was elevated in September, and Harry Edwards took senior status in November. Thus, there were only nine active judges by year end.)


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