Bench Memos

There Wouldn’t Be Enough Work to Go Around

As I have written before, and Ed Whelan has documented in detail, President Obama’s ongoing effort to confirm three new judges to the D.C. Circuit is little more than a naked attempt to pack the Court with activists who will rubber stamp his unconstitutional administrative agenda. The Court already has the lowest caseload in the nation, and, if anything, trends show that their workload is decreasing.

At yesterday’s Senate Judiciary Committee hearing, Senator Grassley underscored that point by releasing information he received directly from the D.C. Circuit’s judges, who submitted anonymous feedback on the question of whether the court needs more judges. According to one judge:

“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time.  . . .  If any more judges were added now, there wouldn’t be enough work to go around.”

Another judge wrote that:

 “The Court does not need additional judges for several reasons.  For starters, our docket has been stable or decreasing, as the public record manifests.  Similarly, as the public record also reflects, each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.”

This low workload, according to the judges, is due in large part because of the “extraordinary number of sitting senior judges (six) who are actually younger than the average age of U.S. senior judges.” Another judge predicted that those senior judges were young and healthy enough that they would likely serve another decade or more.

In a letter to Senator Grassley, the D.C. Circuit’s Chief Judge, Merrick Garland, confirmed these trends. As the Wall Street Journal explained in an editorial:

D.C. Circuit Chief Judge Merrick Garland recently provided numbers from the court’s docket that give a clearer picture of overall case load of the court as well as the role played by judges who take senior status but continue to hear cases. The letter makes clear that the Democratic rush to confirm nominees is based on political hype, not judicial need. . . . Put together, the six senior judges who hear oral arguments carry the approximate work load of 3.25 full time active judges, according to the D.C. Circuit Court. That leaves the court currently with the equivalent of roughly 11.25 full-time judges, which means more than enough judges to hear the available cases, and far cushier than busier appellate courts whose vacancies have been a lesser priority for the White House.

Senator Grassley and Representative Tom Cotton have filed legislation to eliminate the three unnecessary judgeships from the D.C. Circuit, and Senator Grassley’s version of the legislation would move them to other circuits where judges are dealing with very high caseloads. I hope they will be joined by other members of Congress who appreciate the importance of preserving the impartiality of our judicial system.   


Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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