Grassley Proposes Eliminating 3 Seats On Powerful Court To Keep Obama From Filling Them

As ThinkProgress has previously explained, the United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Time, however, is a harsh mistress, and several of the court’s older Republican appointees have taken partial retirement in the last several years. As a result, this court that once boasted one of the most lopsided lineups in the country now is split 4–3 between Democratic and Republican appointees. Moreover, the Senate Judiciary Committee held a hearing Wednesday on the nomination of Sri Srinivasan to the DC Circuit, a nominee brimming with conservative endorsers and past jobs working for Republican judges and administrations. If Srinivasan is confirmed, Republican-appointees will no longer have a majority among the active judges on the nation’s second-highest court. If another Obama nominee is confirmed to one of the three remaining vacancies, Republican-appointees will be in the minority.

Which explains why Sen. Chuck Grassley (R-IA) used Srinivasan’s hearing to introduce legislation ensuring that this won’t happen:

I would like to spend a couple minutes discussing the D.C. Circuit. As most of my colleagues know, the D.C. Circuit is the least busy circuit in the country. In fact, it ranks last or almost last in nearly every category that measures workload.

Based on the 2012 statistics from the Administrative Office of the U.S. Courts, the D.C. Circuit has the fewest number of appeals filed per authorized judgeship, with 108. By way of comparison, the 11th Circuit ranks first with over 5 times as many appeals filed per authorized judgeship, with 583. . . . Given this imbalance in workload, today I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

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.

Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible. If Grassley tries to use this excuse in the future to block an Obama nominee to the DC Circuit, Senate Democrats can respond by nuking the filibuster and making Grassley’s transparently self-serving views irrelevant.