Assume Bill Dead: How A Conservative, Bush-Appointed Judge Just Made A Fool Out Of Chuck Grassley

Judge Timothy Tymkovich is a very conservative judge. A George W. Bush appointee to a federal appellate court, Tymkovich recently authored an opinion giving religious conservatives sweeping ability to ignore laws they object to on religious grounds. His opinion not only would allow such conservatives the ability to deny birth control coverage to their employees, it even includes some language suggesting that religious employers could object to laws ensuring “gender equality.”

Yet, at a hearing Monday in the Senate Judiciary Committee, Tymkovich subtly revealed that an effort by the top Republican on the Judiciary Committee to prevent President Obama from confirming three nominees to a powerful court is rooted entirely in false shoddy reasoning.

The United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country, and it is currently a bastion of conservative skepticism to environmental laws, workplace protections and similar laws. Grassley proposed eliminating three open seats from this court — a proposal that would ensure that the court remains staunchly conservative. Rather than arguing directly that three seats should be stripped from a powerful court to keep that court in Republican hands, however, Grassley offered the rationale that the DC Circuit has a lower caseload — at least in terms of raw numbers — while the Second and Eleventh Circuits both have high caseloads. Thus, Grassley’s proposal would not just eliminate seats from the DC Circuit, it would add one seat each to the Second and Eleventh.

Judge Tymkovich, however, was at the Senate in his capacity as chair of the federal judicial committee that evaluates which federal courts are truly in need of additional judgeships — i.e. which courts are overworked and which courts are underworked. Tymkovich’s committee did not recommend eliminating a single seat — much less three — from the DC Circuit. Nor did it recommend that seats be added to the Second and Eleventh Circuits, as Grassley has proposed. It did recommend adding two federal appellate seats, but its recommendation was that these seats should be added to the Sixth and Ninth Circuits. In other words, a neutral panel of judges led by a staunchly conservative Bush appointee evaluated the judiciary’s needs and came up with numbers that in no way resemble Grassley’s recommendation.


It’s not hard to guess why this disparity exists. Grassley based his ostensible plan to trim underworked courts and expand overworked ones on the raw numbers of cases filed and decided in the various courts. But this is not a useful method of assessing judicial workload — especially in the court where Grassley wants to slash seats. As ThinkProgress explained shortly after Grassley announced his proposal:

While it is true that the DC Circuit’s caseload is relatively small in terms of raw numbers, Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges). The DC Circuit, by contrast, hears far fewer of these easy cases that require very little work on the part of judges.

Indeed, it’s likely that even Chuck Grassley understands that Chuck Grassley’s numbers are misleading. In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventh active judge on the DC Circuit at the time of his confirmation.

Grassley can now add a staunchly Republican judge to the list of people who aren’t buying his numbers.