Packing the D.C. Circuit

The Senate battle over the D.C. Circuit Court of Appeals is heating up.  On Monday, Senator Harry Reid (D-NV) filed cloture on the nomination of Patricia Millett, and the Senate is expected to vote on her nomination to the D.C. Circuit tomorrow. Both sides of the aisle are preparing for a battle over the nominations of Millett and two others. Senator Lindsey Graham (R-SC) declared he will block all appointments until the Administration sheds more light on the 2012 attack in Benghazi. Meanwhile, Senators Reid and Patrick Leahy (D-VT) mistakenly argue that the Republicans are simply obstructionist, and Senator Chuck Schumer (D-NY) vowed to “fill up the D.C. Circuit one way or another.”

Widely regarded as a stepping stone to the Supreme Court, the D.C. Circuit hears a considerable number of cases involving federal agencies. As a watchdog over the executive branch, it’s the most important appellate court in the federal judicial system second only to the Supreme Court when it comes to restraining overreaching, unilateral, or unconstitutional actions by the president. Thus, what happens on this particular court should be of very serious concern to Americans nationwide, given the constantly increasing push by the federal government, particularly unaccountable federal bureaucracies, to intrude into state sovereignty and every facet of our everyday lives.

For these reasons, President Obama naturally wants to fill up the D.C. Circuit with judges of his choosing who share his ideology and his unlimited view of executive power. Despite the fact that it is the most underworked appellate court in the country, President Obama is pressing ahead to fill judicial vacancies that have remained open for years.

Congress allotted 11 spots for full-time judges on the D.C. Circuit. There are currently eight full-time judges and six semi-retired judges who do the work of roughly three full-time judges. The D.C. Circuit’s caseload, however, has been steadily decreasing over the past two decades, and one of the current D.C. Circuit judges said in a letter to senators this summer, “If any more judges were added [to the D.C. Circuit] now, there wouldn’t be enough work to go around.”

This stands in stark contrast to many other federal appellate courts that are overworked and understaffed due to the president’s failure to nominate replacements for empty judgeships. For example, more than 580 appeals are filed per judge each year in the Eleventh Circuit, which hears appeals from Alabama, Florida and Georgia. The D.C. Circuit receives only one-fifth as many appeals each year. None of the empty judgeships is considered a “judicial emergency”—indeed, President Obama has made nominations for only 18 of the 37 declared “judicial emergencies.”

In fact, there is such a lack of need for more judges in the D.C. Circuit that in 2006, eight Democratic senators, led by Patrick Leahy and Chuck Schumer sent a letter to Senator Arlen Specter, then the Republican chairman of the Senate Judiciary Committee, asking for a postponement of the confirmation hearing of one of President Bush’s nominees to that court (who was never confirmed) because the court’s low workload “did not warrant” more judges. They pointed out that, since 1997, “by every relevant benchmark, the caseload for that circuit has only dropped further.” Since then, the D.C. Circuit’s workload has dropped even more.  Of course, as chairman of the Senate Judiciary Committee today, Senator Leahy takes a different position—that the D.C. Circuit “must be allowed to operate at full strength.”

What, then, explains the push for more judges on the D.C. Circuit? The answer is pretty clear. The D.C. Circuit has ruled against President Obama’s agenda in several high-profile cases in recent years. Most notably, the court invalidated a rule applying the Dodd-Frank financial reform law, overruled a burdensome Environmental Protection Agency rule regulating cross-state power plant emissions, and ruled President Obama’s sham “recess” appointments to the National Labor Relations Board unconstitutional.  The EPA and recess appointments cases are now pending before the Supreme Court.  It’s no surprise that President Obama is trying to improve his chances before the appellate court by packing it with judges whom he believes — rightly or wrongly — will rubber-stamp his policies.

The Senate should justify why more judges are needed on an underworked appellate court before rushing to confirm judges merely to serve an ideological end.

Hans A. von Spakovsky is a Senior Legal Fellow and Elizabeth Slattery is a Senior Legal Policy Analyst at The Heritage Foundation (