Judicial Nominations: Partisan Showdown Part Deux

By: Andrew Mackanin

The Supreme Court is the most important court in the United States. Immediately behind is the D.C. Circuit Court of Appeals because of its jurisdiction over many of the federal agencies that reside in the District of Columbia. Also, the court is viewed a stepping stone to the Supreme Court considering four of the current nine justices on the Supreme Court have served on the D.C. Circuit.

Sri Srinivasan was confirmed this past May as the newest justice on the D.C. Circuit Court of Appeals after a prolonged battle between Democrats and Republicans over his nomination and President Obama’s other nominees. Srinivasan and the nominees were confirmed after the Majority Leader, Senator Harry Reid (D-Nevada), threatened to use the “nuclear option” which would allow democrats to end the debate by simple majority vote.

Now, with President Obama’s announcement of three more judicial nominees for the D.C. Circuit, the next battle has begun.  All three candidates are qualified to perform their bench duties and two have already been confirmed by the Senate Judiciary Committee along party line votes. The battle began during the Senate Judiciary Committee hearings when Senator Grassley (R-Iowa) began the debate by claiming the D.C. Circuit does not have a sufficient workload to warrant an additional three justices. Senator Hatch (R-Utah) stated that he was “not really voting against the nominees,” but was “voting against packing the court.”

As a result of these claims, Senator Grassley began pushing legislation to remove the three seats from the Circuit.  This action warrants a second look because Senator Grassley voted to fill the same three seats when former President George W. Bush was in office.  At that time the average number of cases pending before the court during the either years of the Bush Administration was 1,152. The average number of cases during the Obama administration so far is 1,362 cases; this is almost 200 more cases on average. Furthermore, the average number of cases per judge has risen from 119 in 2005 to 188 currently.  However, the raw numbers support Senator Grassley’s claim especially when compared to a similar court: the 1st Circuit. The D.C. Circuit had 1,369 cases pending in 2012, whereas, the 1st Circuit had 1,248. The actual total numbers of cases commenced in the 1st Circuit (1,578) is greater than the D.C. Circuit (1,200). There are nine justices on the 1st Circuit and fourteen justices on the D.C. Circuit. This numbers include both full-time and senior justices.

The main argument against this raw data is based on the types of cases each Circuit hears.  The D.C. Circuit hears a much higher volume of complicated regulatory cases as compared to other Circuits, including the 1st Circuit. This is because many federal agencies are located in D.C. and therefore must use the D.C. Circuit for dispute resolution. In addition, the D.C. Circuit deals with regulatory cases involving the environment and national security interests, which have much broader implications than issues handled by other circuits. Regulatory cases are also much harder to organize and reason, requiring a greater number of man-hours to decide.

The argument that the D.C. Circuit is unique is supported by Chief Justice John Roberts, who is a former Chief Justice of the D.C. Circuit. The Chief Justice recently lectured on the many differences of the D.C. Circuit. Justice Roberts also heads the Judicial Conference of the United States that reported in April to the Senator Judiciary Committee that the D.C. Circuit should remain at eleven justices. Patricia Wald, a retired judge from the D.C. Circuit also defends the eleven justice model in a recent Washington Post opinion piece. In a hearing before the Senate Judiciary Committee, Judge Tymkovich from the 10th Circuit responded to a line of questioning about the D.C. Circuit with some helpful figures about administrative appeals. He pointed out the justices on the D.C. Circuit have “something like 120 administrative appeals per judgeship panel, versus about twenty eight for the other Courts of Appeals.” Furthermore, since 2002, the D.C. Circuits administrative cases filed per panel has never been less than one hundred cases.

When this fight comes to a head, it may lead to another threat of the “nuclear option” in order to push the nominations through. It might even lead to the Senate Democrats exercising the option, which would fundamentally change the way the Senate operates. This option is controversial because utilizing it would leave the minority without any options to hold the majority in check. This could lead to a lack of debate in the Senate where the majority rule is all you need.  The appeal of this course of action is tempting; however, if Democrats use this “nuclear option,” there may be no going back. Only time will tell if enough Republicans can be swayed to vote for President Obama’s nominees to avoid this all together.

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