Some Points In Opposition to Senator Grassleys "Court Efficiency Act

May 7, 2013

Background
The United States Court of Appeals for the District of Columbia Circuit is generally considered to be the Nations second most important court, after the Supreme Court. This is because the D.C. Circuit has exclusive jurisdiction over disputes involving numerous federal laws and regulations, and is responsible for resolving critically important cases involving national security, environmental protection, employment discrimination, food and drug safety, separation of powers, and the decisions of a wide array of administrative agencies. Congress has authorized 11 judgeships for this court; currently, however, four of those 11 judicial seats are vacant, giving the court the highest percentage of vacancies of any circuit court. (One of the seats has been vacant since 2005, when John Roberts was elevated to Chief Justice.) Of the seven active judges, four were appointed by Republican Presidents, and three by Democratic Presidents. As of this writing, there is only one pending nominee, Sri Srinivasan, to a vacancy on this court. On April 10, 2013, Senator Charles Grassley, Ranking Member of the Judiciary Committee, kicked off the confirmation hearing for Mr. Srinivasan by announcing that he was introducing a Court Efficiency Act, S.699, which would, if enacted, eliminate three of the 11 authorized judgeships from the D.C. Circuit, and add one judgeship each to the Second Circuit and the 11th Circuit. Senator Grassley claimed the proposal was justified by the imbalance in the workloads of three Circuits, and stated that the bill would take effect upon enactment. All of the other Republican members of the Judiciary Committee are original co-sponsors of the bill. The points below are also the basis for this blog post: http://theusconstitution.org/text-history/1959/did-senator-grassley-not-check-his-inbox-his-proposalgut-dc-circuit-ignores

Points
Senator Grassleys proposal is not based on any study and ignores recent Judicial Conference recommendations: Senator Grassleys proposal would eliminate nearly 30% of the seats on the D.C. Circuit, yet is not based on any study of the courts workload or judicial staffing concluding that such an extraordinary reduction in the number of judges on this important court is warranted. In addition, the proposal in fact ignores recent recommendations of the Federal Judicial Conference. By letter of April 5, 2013 to Senate Judiciary Chairman Patrick Leahy, a copy of which was also sent to Senator Grassley, the Judicial Conference transmitted to the 113th Congress the Conferences Article III and bankruptcy judgeship recommendations and corresponding draft legislation for the 113th Congress. With respect to the Circuit Courts, these recommendations include the addition of four judges to the Ninth Circuit and one to the Sixth

Circuit; there is no recommendation to add any judges to the Second or 11th Circuits. Senator Grassleys proposal would not only gut the D.C. Circuit, but it would also add judgeships to courts where the Judicial Conference has not stated they are needed. The proposal compares apples and oranges: Senator Grassleys proposal is based solely on a numeric comparison of cases pending per judge in the D.C. Circuit and in the Second and 11th Circuits. But this comparison wrongly assumes that the typical D.C. Circuit case is similar to the typical case in any other Circuit. It isnt; Senator Grassley is comparing apples to oranges. As former D.C. Circuit Chief Judge Pat Wald -- who served on that court for more than twenty years -- has explained: The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record all of which culminates in lengthy, technically intricate legal opinions.1 Judge Wald further noted that My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases. The nature of the D.C. Circuits caseload is what sets it apart from other courts. 2 Chief Justice John Roberts, himself a former D.C. Circuit Judge, has also described the uniqueness of the D.C. Circuits caseload: It is when you look at the docket that you really see the differences between the D.C. Circuit and the other courts. One-third of the D.C. Circuit appeals are from agency decisions. That figure is less than twenty percent nationwide. About one-quarter of the D.C. Circuits cases are other civil cases involving the federal government; nationwide that figure is only five percent. All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide.3 The Judicial Conference has also recognized that the D.C. Circuits caseload is unique and that cases on that Circuit cannot be equated, one for one, with cases in other Circuits, and thus does not include the D.C. Circuit in its biennial evaluation of the workload of the lower courts and its recommendations to Congress as to which courts need more judges and on which courts vacancies should not be filled. Of course, the Judicial Conference could separately recommend that vacancies on the D.C. Circuit not be filled, which it has not done.

Patricia M. Wald, Senate must act on appeals court vacancies, Washington Post (Feb. 28, 2013), available act: < http://articles.washingtonpost.com/2013-02-28/opinions/37350554_1_senior-judges-chief-judge-appeals-courtvacancies> 2 Id. For more information, see also Judge Walds remarks about the D.C. Circuit at the March 25, 2013 discussion of Why Courts Matter: The D.C. Circuit, here: http://www.americanprogress.org/events/2013/03/14/56746/why-courts-matter-the-d-c-circuit/ 3 John G. Roberts, Jr., What Makes the D.C. Circuit Different? A Historical View, 92 Va. L. Rev. 375, 376 -77 (2006).

The D.C. Circuit is a nationally important court that needs to be fully staffed: The D.C. Circuit is generally considered to be the Nations second most important court, after the Supreme Court. This is because the D.C. Circuit has exclusive jurisdiction over disputes involving numerous federal laws and regulations, and is responsible for resolving critically important cases involving national security, environmental protection, employment discrimination, food and drug safety, separation of powers, and the decisions of a wide array of administrative agencies. The full staffing of this court is of nationwide importance. Certainly no decision to effectuate a nearly 30% reduction in the number of judges on this critical court should be made in a partisan, political manner and without careful study. The proposal would take effect immediately, which Senator Grassley concedes is contrary to past practice: Senator Grassleys proposal is rendered further suspect because it would take effect immediately upon enactment, and not at the start of the next presidential term, which Senator Grassley himself concedes is most often when legislation altering the number of judgeships would take effect. The Senators excuse that immediate action is needed to alleviate some of the heavy workloads of the Second and Eleventh Circuits4 is belied by the fact that the Judicial Conference has not recommended additional judgeships for those Circuits. The above flaws in the proposal underscore that it is the product of partisan hypocrisy, as the judicial caseload numbers and prior actions of the proposals sponsors also demonstrate: Senator Grassleys proposal is a blatantly partisan and hypocritical effort to keep President Obama from filling vacancies on the D.C. Circuit, a mass filibuster by another name. When George W. Bush was nominating judges to this Court, the workload issues that supposedly concern Senator Grassley now did not stop him or his Republican colleagues from voting to confirm Bush nominees Janice Rogers Brown and Thomas Griffith to the 10th and 11th seats on the D.C. Circuit in June 2005, even though the caseload per authorized judge (109) was smaller then than it is now (120). 5 Similarly, in February 2003, also during the G.W. Bush Administration and at a time when there were eight active judges on the court, Senator Orrin Hatch stated this about the D.C. Circuit in urging the confirmation of Bush nominee Miguel Estrada for the ninth seat on the court:

159 Cong. Record No. 47, S2566 (daily ed. April 10, 2013) (statement of Senator Grassley), available at: http://www.gpo.gov/fdsys/pkg/CREC-2013-04-10/pdf/CREC-2013-04-10-pt1-PgS2565.pdf#page=1. 5 On March 31, 2005 -- the date closest to the confirmations of Brown and Griffith for which these figures published by the U.S. Courts exist -- there were 1,313 cases pending in the D.C. Circuit, which at the time had 12 authorized judgeships, or 109 cases per authorized judge (the metric used by Senator Grassley). The most current U.S. Courts statistics are as of September 30, 2012, when there were 1,315 pending cases in the D.C. Circuit, or 120 cases per authorized judge, the figure cited by Senator Grassley as so low that three judgeships should be eliminated. Another way to look at the data is by cases per active judge, measuring the actual workload of the judges actually on the court; this is the metric used by Senate Judiciary Committee Chairman Patrick Leahy. In March 2005, there were nine active judges on the D.C. Circuit, and thus 146 cases per active judge. After Browns confirmation to the th 10 seat, there were 131 cases per active judge, a number that dropped to 119 when Griffith was confirmed. Currently, with only seven active judges on the D. C. Circuit, the caseload is 188 cases per active judge, 58% higher than it was when Griffith was confirmed.

It is a very important court. In fact, next to the Supreme Court, it is the next most important court in the country no question about it because the decisions they make affect almost every American in many instances. . . I might also add that the D.C. Circuit is in the midst of a vacancy crisis unseen in recent memory. Only eight of the courts 12 authorized judgeships currently are filled. . . The D.C. Circuit has not been down to eight active judges since 1980. It is a crisis situation because it is extremely important. The vacancy crisis is substantially interfering with the D.C. Circuits ability to decide cases in a timely fashion. As a result, litigants find themselves waiting longer and longer for the court to resolve their disputes. Because so many D.C. Circuit cases involve constitutional and administrative law, this means that the validity of challenged government policies is likely to remain in legal limbo.6 As of March 31, 2003, the nearest date to Senator Hatchs speech for which there are published data from the U.S. Courts regarding the D.C. Circuits workload, the court had 1,001 cases pending, or a workload of only 83 cases per authorized judge. Now, however, that workload is 120 cases per authorized judge 7 -- yet Senator Hatch is a co-sponsor of Senator Grassleys bill to gut the court by eliminating three of its 11 authorized judgeships.

149 Cong. Rec. No. 21, S1953 (daily ed. Feb. 5, 2003) (statement of Senator Hatch, emphasis added), available at: http://www.gpo.gov/fdsys/pkg/CREC-2003-02-05/pdf/CREC-2003-02-05-pt1-PgS1928-3.pdf#page=25 7 See n. 5, above. (In 2003, the caseload per active judge was 125; now it is 188.)