Dispute over Obama’s choices for D.C. court centers on need – and politics

McClatchy Washington BureauJune 17, 2013 

The U.S. Court of Appeals for the D.C. Circuit E. Barrett Prettyman building in Washington D.C.

TISH WELLS — McClatchy

— A fight is brewing over President Barack Obama's efforts to fill three vacancies on a single federal court that Republicans claim doesn't do enough work to merit them.

Sen. Chuck Grassley, R-Iowa, wants to cut three seats from the U.S. Court of Appeals for the District of Columbia Circuit, which often rules on the legality of government rules and regulations. A number of other prominent Republican senators have joined him, including Sens. Lindsey Graham of South Carolina and Ted Cruz of Texas.

Grassley, the ranking Republican on the Senate Judiciary Committee, claims the D.C. Circuit is the “least busy” circuit court in the country, ranking “last or almost last in nearly every category that measures workload,” he said.

While the numbers comparing the caseloads between the D.C. Circuit and other courts suggest some major differences, Grassley’s critics say his use of them is misleading.

“Most of the D.C. Circuit’s docket includes reviewing administrative agencies, and those take more time,” said Susan Bloch, a professor of constitutional law at the Georgetown University Law Center and a former law clerk for the D.C. Circuit. “This is a partisan move. The court should not be shrunk.”

Democrats said that Republicans never raised objections when President George W. Bush, a Republican, made appointments to the same court. The 11-seat bench currently sits at four judges nominated by Republican presidents and four by Democrats.

“When a Republican was president, 11 judges on the D.C. Circuit Court made complete sense,” Obama said during a recent Rose Garden speech. “Now that a Democrat is president, it apparently doesn’t.”

But Carrie Severino, chief judicial council and policy director for the Judicial Crisis Network, a conservative legal advocacy group, said that announcing three nominations at once was a political ploy.

“Let’s throw everything at (Republicans) at once and give them a choice between looking like they’re obstructing three judges at once or looking like they’re just going to roll over and fill up a bench that doesn’t need filling,” she said. “Even the way he did this announcement was obviously a publicity stunt. You don’t normally announce appellate judges from the Rose Garden.”

Republicans have been unsuccessful in several attempts to split up the 9th U.S. Circuit Court of Appeals, which covers nine Western states and is considered the nation’s most liberal. They argued that it has a heavy workload and covers too large an area.

The numbers for the D.C. Circuit suggest some major differences in federal appeals courts workloads.

The D.C. Circuit had 1,178 appeals filed and 53 written decisions per judge in 2010. By comparison, the 2nd Circuit, which covers part of New England, had 5,371 appeals filed and 277 written decisions per judge, according to the Administrative Office of the U.S. Courts.

The second-lowest circuit for total written decisions per judge was the 10th Circuit – which covers parts of the South and the West, including Oklahoma and Colorado. It had 83, still 20 more than the D.C. Circuit. Grassley’s legislation also would add a judgeship to the high-trafficked 2nd Circuit and to the 11th Circuit, which covers a portion of the South, including Florida and Alabama.

Unlike those courts, the D.C. appeals branch is often engaged in the conduct of the federal government.

One recent case concerned a demand by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives that certain firearm dealers in Arizona, California, New Mexico and Texas report to the ATF if they made two or more sales of a specific type of firearm to the same buyer within five days. The National Shooting Sports Foundation challenged the ATF’s authority to make that demand, and the D.C. Circuit ruled in the agency’s favor.

Beth Pellett Levine, Grassley’s press secretary, said the bill is about policy, not partisan politics.

“Certainly . . . we have had scandals that demonstrate the danger of overheating the politics of every issue and turning every policy dispute into a non-stop campaign issue,” Grassley said. “So rather than packing the court in hopes of obtaining more favorable rulings, our consideration of judicial nominations for the D.C. Circuit should be even more measured.”

“Packing the court” is an expression that grew out of President Franklin D. Roosevelt’s second term, when he attempted in 1937 to add six more justices to the Supreme Court, which had down struck down several of his New Deal programs. Contrary to Grassley’s reference, Obama is not attempting to expand the court, just fill vacancies.

Russell Wheeler, an expert on federal courts at the center-left Brookings Institution, said he favors the regular assessment of federal courts to determine the needs of the various circuits. But he said it should be done by the Judicial Conference of the U.S., a panel of judges that serves as an administrative body over the courts, not by Congress.

Email:Kirby@mcclatchyd.com; Twitter: @kateirby

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