D.C. Circuit Court Nominees To Appear Before SJC Next Month

[Senator Patrick Leahy (D-Vt.) announced Monday that the Judiciary Committee will next month begin confirmation hearings for President Barack Obama’s nominees to the D.C. Circuit Court of Appeals.  The Court is currently one-third vacant, and earlier this month the President nominated Patricia Millett, Nina Pillard, and Judge Robert Wilkins to fill the open seats.]

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On the Recent Nominations to the Circuit Court of Appeals for the
District of Columbia Circuit
June 17, 2013

Two weeks ago, I attended President Obama’s announcement of the nominations to the D.C. Circuit.  Senate Republicans have been very critical of the President for not sending nominations for judicial vacancies to the Senate.  Now that he has sent nominees for the multiple vacancies that continue on the D.C. Circuit, some Senate Republicans are complaining that he has sent too many. 

Having been unfairly criticized in connection with the nomination of Judge Srinivasan, I will be making every effort to schedule prompt hearings for these impressive nominees, each of whom received the highest possible rating of “well qualified” from the nonpartisan ABA Standing Committee on the Federal Judiciary.  I have consulted the ranking Republican on the Committee and informed him that I plan to notice the first hearing for July 10.  That will be 36 days since the nominations and on a slightly slower timeline than we followed for the more recent confirmation of the nominee to the Eighth Circuit.  I plan to include the nomination of Patricia Millett of Virginia, which should have broad bipartisan support, in our July 10 confirmation hearing.

It is disappointing that the same Republican Senators who said during the George W. Bush administration that the D.C. Circuit should have 11 filled judgeships, and who voted to confirm President Bush’s nominees for the ninth, tenth, and eleventh seats, now, when there is a President of the other party in the White House, say that those seats should not be filled.  It is disappointing that Republican Senators I have helped fill circuit vacancies with nominees from their home states, over opposition from their own Republican Senate caucus, are ready to tow their party’s line when it comes to the D.C. Circuit.

Following President Obama’s reelection, Senate Republicans are even proposing to eliminate those D.C. Circuit judgeships legislatively.  Their claims of concern about the caseloads of the Second and Eleventh Circuits – but not the most overburdened Ninth Circuit – are difficult to reconcile with their votes for President Bush’s D.C. Circuit nominees.  As one scholar at the nonpartisan Brookings Institution has said, this “fooled no one who was paying attention.”

I cannot help but wonder where Senate Republicans’ concern about the caseload of the Second Circuit was when they needlessly delayed the confirmation of Gerard Lynch for three months; when they needlessly delayed the confirmation of Raymond Lohier for seven months; when they needlessly delayed the confirmation of Susan Carney for five months; when they unfairly stalled the nomination of Judge Robert Chatigny and then needlessly delayed the confirmation of the next Connecticut nominee, Chris Droney, for four months; or when they needlessly delayed the confirmation of Denny Chin for four months and forced the Majority Leader to file cloture to get a confirmation vote. 

I wonder where their concern about the caseload of the Eleventh Circuit was when they needlessly delayed the confirmation of Beverly Martin for four months, or when they needlessly delayed the confirmation of Adalberto Jordan for four months and forced a cloture vote before his confirmation.  I am prepared to help alleviate concern about the caseload of the Eleventh Circuit by scheduling a hearing on the nomination of Jill Pryor, a “well qualified” nominee from Georgia to the Court, if her home State Senators would return their blue slips indicating that they do not object to her nomination going forward.  

The American people are not fooled.  Senate Republicans are now playing by a different set of rules.  Politifact has looked at their argument that President Obama is trying to “pack” the D.C. Circuit, and rated it “false.”  It goes on to note that the Republican bill to eliminate D.C. Circuit judgeships “comes closer to the kind of structural meddling typical of court packing than does Obama’s approach.”  In the last 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit.  Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage, and thwart the will of the American people, who elected Barack Obama.  Even conservative columnist Byron York has tweeted: “It doesn’t strike me as ‘packing’ to nominate candidates to available seats.”

The Washington Post’s “Fact Checker” blog has also looked at the arguments about the D.C. Circuit’s caseload that Senate Republicans are using to justify their attempt to eliminate three seats on that court, and has judged them worthy of two “Pinocchios,” meaning: “Significant omissions and/or exaggerations.  Some factual error may be involved but not necessarily.  A politician can create a false, misleading impression by playing with words and using legalistic language that means little to ordinary people.” 

Senate Republicans should know that their argument about the D.C. Circuit’s caseload is misleading.  While they claim expertise in the matter because of a hearing they held in 1995, the fact is that their current claims fly in the face of the actual testimony from that hearing.  They are fond of citing the testimony of Judge Laurence Silberman, a Reagan appointee, that he felt the 12th seat was not necessary.  What Senate Republicans do not mention is that Judge Silberman believed that 11 judgeships was the proper number on that Circuit, and that the notion that the D.C. Circuit should have only nine judges was “quite farfetched.”  Judge Silberman also said that “the unique nature of the D.C. Circuit’s caseload” means that it is not directly comparable to the other circuit courts.  Even though their own witness contradicted them, 18 years later Senate Republicans continue to make their partisan argument.  In addition, we eliminated that twelfth seat years ago.

In its April 5, 2013 letter, the Judicial Conference of the United States, chaired by Chief Justice John Roberts, sent us recommendations “based on our current caseload needs.”  They did not recommend stripping judgeships from the D.C. Circuit but stated that they should continue at 11.  Three are currently vacant.  According to the Administrative Office of U.S. Courts, the caseload per active judge for the D.C. Circuit has actually increased by 46 percent since 2005, when the Senate confirmed President Bush’s nominee to fill the eleventh seat on the D.C. Circuit.  When the Senate confirmed Thomas Griffith – President Bush’s nominee to the eleventh seat – in 2005, the confirmation resulted in there being approximately 121 pending cases per active D.C. Circuit judge.  According to the most recent data, there are currently 177 pending cases for each active judge on the D.C. Circuit, 46 percent higher.

Further, concerns about low caseloads did not bother Senate Republicans voting this past February to confirm a Tenth Circuit nominee from Oklahoma, giving that Court the lowest number of pending appeals per active judge in the country.  It did not bother Senate Republicans voting this past April to confirm an Eighth Circuit nominee from Iowa, giving that Court the lowest number of pending appeals per active judge in the country.  Yes, lower than the D.C. Circuit.  I do not recall seeing any bills from Senate Republicans to eliminate the Oklahoma and Iowa judgeships.

This falls into a pattern that we have seen from Senate Republicans over the past 20 years.  While they had no problem adding a  twelfth seat to the D.C. Circuit in 1984, and voting for President Reagan’s and President George H.W. Bush’s nominees for that seat, they suddenly “realized” in 1995, when a Democrat served as President, that the Court did not need that judge.  Judge Merrick Garland was finally confirmed in 1997 after President Clinton was reelected but Senate Republicans would not act on his final two nominees to the D.C. Circuit.

In 2002, during the George W. Bush administration, the D.C. Circuit’s caseload had dropped to its lowest level in the last 20 years.  During that Republican administration, Senate Republicans had no problem voting to confirm President Bush’s nominees to the ninth, tenth and eleventh seats.  These are the same seats they wish to eliminate now that Barack Obama is President, even though the Court’s current caseload is consistent with the average over the past 10 years.  Even on its own terms, it is apparent that this argument has nothing to do with caseload, and everything to do with who is President.  When Senate Republicans get serious about ensuring our Federal courts are adequately staffed, I am more than happy to work with them on a long-overdue judgeship bill.  But this selective concern about the D.C. Circuit, and the fact that in 2008 the minority blocked a Judiciary Committee hearing on “The Growing Need for Federal Judgeships,” does not reflect such seriousness.

I urge Senate Republicans to reconsider their approach and work with the President.  Let us have fair hearings on the three D.C. Circuit nominees.  If we do, I am confident we will agree that they are well-qualified judicial nominees.


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