The New York Times reports that President Obama today named a slate of three “judges to the United States Court of Appeals for the District of Columbia Circuit, daring his rivals to block their confirmations.” There are currently three vacancies on the D.C. Circuit, which progressive groups falsely claim has resulted in a “judicial crisis” and overworked judges facing a blizzard of new cases.
Peddling the myth that there is a vacancy crisis that can be solved only by appointing more liberal judges may be a good way for the president to rile up his political base and create a political confrontation, but the “judicial crisis” claims have little basis in reality.
I practice before the D.C. Circuit, and have argued before it, and judging from my observations, none of the three vacancies needs to be filled. The D.C. Circuit judges are not overworked. When I go down there to file a petition for review, it’s like a ghost town. The Senate recently confirmed President Obama’s first nominee to that court, Sri Srinivasan, by a 97-0 vote. GOP Senators have questioned whether any additional appointments are necessary.
National Review’s Ed Whelan notes that the D.C. Circuit “may well be the most underworked court in the country.” Moreover, its workload appears to be declining, he observes: “According to official U.S. court statistics, the total number of pending appeals in the D.C. Circuit had fallen from 1,463 in September 2005 to 1,315 in September 2012. That would be a decrease of more than 10 percent. As the linked pages show, the number of cases filed also decreased by more than 14 percent from the 12-month period ending Sept. 30, 2005, to the 12-month period ending Sept. 30, 2012.”
Appellate judges, like most people, prefer cushy jobs. And the more judges there are on a court, the less work there is for each judge to do. As a result, chief judges of circuit courts declare “judicial emergencies” because of vacancies even when many of the judges on a court have remarkably little work to do. One of my friends and former co-workers clerked on the U.S. Court of Appeals for the Sixth Circuit during a so-called “judicial emergency” back in the Clinton administration, when many seats on that court were vacant. During that period, the judge he clerked for worked as little as an hour a day and spent more time golfing than working. That judge’s opinions were drafted either by his own clerks (for the minority of opinions that were published), or lawyers in the court’s staff attorneys office (for many unpublished opinions). Those staff attorneys could churn out just as many summary dispositions with fewer judges on the court.
There are a few growing border states, such as Texas, where more trial judges are needed. I remember how overworked one district court judge in Southern Texas was when my law firm appeared before her, thanks to lots of border-related cases. But there is no urgent need for any new appellate judges, and most federal appeals courts, with the exception of the 5th and 11th Circuits, could easily function with fewer, rather than more, judges. During the Bush administration, Democratic senators blocked the appointment of two well-qualified judges to the D.C. Circuit, Peter Keisler and Miguel Estrada, and some Democrats suggested back then that the D.C. Circuit already had enough judges.
Sometimes, I miss my cushy job as a former court clerk to a senior U.S. District Judge. My workload was modest, and my office had a beautiful view of both palm trees and mountains off in the distance. But I honestly can’t argue more judges and clerks are needed. The federal judiciary should tighten its belt, and the number of appellate judges should be reduced to save taxpayers money. America is facing a fiscal crisis, not a judicial crisis.
The D.C. Circuit has been the subject of past battles between the political parties. Democrats used delaying tactics against Bush nominees to the D.C. Circuit, in addition to filibustering others. As Ed Whelan notes, discussing a Bush appointee to the D.C. Circuit, “Janice Rogers Brown’s path to confirmation (from initial nomination) took nearly 23 months.”