Posted by: Patrick Allen Foster | September 28, 2013

About Federal Judges and Judicial Nominees

US Court of Appeals and District Court map

1. At the moment, federal law establishes 179 spots for judges on the thirteen US courts of appeals (not counting judges who have taken senior status), and 16 of those spots are empty. Three of those vacancies are on the US Court of Appeals for the DC Circuit. At the moment, the eight judges on the DC Circuit are evenly divided between Democratic and Republican nominees (three judges nominated by Clinton, one by Obama, one by G.H.W. Bush, and three by G.W. Bush). President Obama has sent the Senate three nominees to fill the existing vacancies. Republicans in the Senate, of course, are fighting the nominees tooth and nail. In service of this resistance — since manners and custom dictate that the Republicans cannot explicitly avow that said resistance is purely strategic or partisan — the Republican senators have come to rely upon a collection of strained arguments.

NPR had a story about this earlier this month:

AILSA CHANG, BYLINE: When it comes to two of the last three nominees for the D.C. Circuit Court of Appeals, the most common complaint you will hear from Republicans actually has nothing to do with the qualifications or even the ideology of the individuals. Talk to Jeff Sessions of Alabama, Tom Coburn of Oklahoma, or Orrin Hatch from Utah, and they will say it just comes down to a cost-benefit analysis.

SENATOR JEFF SESSIONS: We do not need all three circuit judges. I’m not sure we need any.

SENATOR TOM COBURN: We got the D.C. Circuit that doesn’t have enough to do.

SENATOR ORRIN HATCH: I’m voting against packing the court.

CHANG: “Packing the court” – Hatch and many other Republicans have been using the phrase to draw a parallel between President Obama and what the late President Franklin Delano Roosevelt threatened to do when the Supreme Court kept striking down his New Deal legislation.

You don’t have to know too much history to appreciate how strained the “court packing” analogy is — FDR was trying to add more justices, not fill existing vacancies. What Senators Sessions, Coburn, and Hatch are really worried about is that the DC Circuit will go from a 4-4 Dem/GOP composition to a 7-4 Dem/GOP composition. It’s a bit amusing to hear conservatives talk about preserving the balance on the DC Circuit — see, for example, NRO and The Washington Times. I don’t recall hearing those outlets talk about preserving balance and “collegiality” on the DC Circuit back when a Republican was president.

NPR ran the above story on September 19, but really this story has been playing out all summer, if not longer. See, e.g., here and here, and see Scott Lemieux’s piece in the American Prospect (“Shorting the D.C. Circuit”), which ran in late May.

The other argument that GOP senators are making (which I can only imagine convincing the already converted) is that the DC Circuit isn’t really that busy, so we should just eliminate the three empty spots and go to an eight-member appeals court. Again, NPR:

CHANG: …Republicans know Obama can tilt a now evenly divided court towards Democratic appointees by filling the three vacancies on a court that’s considered a top priority. Four of the nine justices on the Supreme Court once sat on this bench. Half of the D.C. Circuit’s cases involve challenges to federal regulations, meaning environmental rules, labor policy and billions of dollars are at stake.

But Republican senators, like Chuck Grassley of Iowa, say these judges just don’t have enough to do.

SENATOR CHUCK GRASSLEY: In terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeal.

CHANG: So, Grassley’s pushing legislation that would reduce the court from 11 seats to eight. He’d get rid of one seat entirely and give the other two seats to the appeals courts in New York and Georgia, which he says have bigger caseloads. Democrats note that Grassley happily voted to fill more than eight seats on the D.C. Circuit in the past, back when Republican presidents were at the helm. And critics argue Grassley isn’t calculating caseload correctly.

Carl Tobias, of the University of Richmond law school, says there may be fewer cases before the D.C. Circuit, but they’re way more labor-intensive.

CARL TOBIAS: Those administrative agency appeals can be exceedingly complex, with hundreds of parties and huge records that run to 50,000 pages. And they can take years to resolve.

CHANG: Judges across the country agree. Just this spring, the Judicial Conference, which is a representative body of federal judges, concluded the D.C. Circuit still needed all 11 judges for its caseload.

With no disrespect to the judges on the other circuit courts (who are also dealing with burgeoning caseloads and unfilled vacancies), those cases challenging federal regulations generally require more judicial resources per case than most of the diversity appeals, federal criminal appeals, and habeas petitions that fill up so much of the dockets at other circuits. So, I am quite comfortable in labeling Senator Grassley’s argument as specious.

2. The most recent judge appointed to the DC Circuit is Sri Srinivasan, the former deputy solicitor general, who was confirmed by the Senate (97-0) this past May.

Earlier in the summer, at Slate, Walter Dellinger, talking about the Court’s 7-2 split in Arizona v. Inter Tribal Council, had this aside about Srinivasan: “In case you don’t think oral argument ever matters, look at then Deputy Solicitor General Sri Srinivasan’s calm and skillful responses to every question raised about the government’s position by Justice Scalia at oral argument in the case.”

One of the (unspoken and kinda unspeakable) reasons that Republican senators are digging in their heels when it comes to filling positions on the DC Circuit (aside from upsetting the 4-4 balance) is that the DC Circuit often provides future nominees and justices for the Supreme Court — more so than any other court of appeals. Srinivasan himself is mentioned as a potential future nominee to the high court.

However, there is no law that SCOTUS nominees must come from the DC Circuit. On the subject of potential future Supreme Court nominees, see this piece at ThinkProgress (“Ten Potential Democratic Supreme Court Nominees Who Aren’t Named ‘Sri Srinivasan'”), which lists, among others, Jane Kelly (Eighth Circuit), Paul Watford (Ninth Circuit), Kamala Harris (current AG of California), and Goodwin Liu (California Supreme Court). (H/T: Orin Kerr, Volokh Conspiracy.)

3. Also at Volokh, Prof. Kerr has a recent post on Obama’s recent judicial nominees as potential “feeder judges” for sending law clerks to SCOTUS: “It’s interesting that the Obama Administration seems to have nominated recently an unusual number of feeder-type candidates to the circuit courts — that is, the kind of nominees who if confirmed could end up as feeder judges to the Supremes, and perhaps Supreme Court short-listers themselves someday.” Of course, “the DC Circuit…is almost an auto-feeder court.”

4. BTW, according to this summary, there are currently 16 vacancies on the various US Courts of Appeals (including the 3 DC Circuit vacancies mentioned above), but President Obama has only named 9 nominees so far. What’s up with that?

5. At Concurring Opinions, Christine Chabot asks, “Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?” An excerpt: “ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.”

6. Todd Zywicki points to this review in the Washington Examiner of John Lott’s new book, Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench. Lott maintains that quality of judges has been steadily declining since the Carter administration as both Republicans and Democrats try to keep the other side’s “superstars” off the bench. From the review:

The ferocious growth of government, Lott argues, has made the judicial nomination process an extraordinarily high-stakes game for both parties.

And when it comes to judicial nominations, nasty fights are a key tactic used by Democrats and Republicans to keep the other team’s best players off the field. The result is an ever-expanding federal government overseen by a less and less-qualified judicial branch.

With so many legislative issues now essentially being decided in federal courtrooms, the stakes for lower court judicial nominations have become exponentially higher.

And, while no party can block all of the other party’s judicial nominees, they can make life particularly difficult for some of them, thus deterring others from agreeing to be nominated.

Neither party wants impressive judges from the other side on the bench for the same reason that judges do not allow lawyers on juries: A smart persuasive judge is more likely to convince other judges to change their votes on a case.

Therefore, it’s logical to expect judges with the best resumes…to be blocked more often. And that is exactly what Lott found.

According to Lott, “graduating from a top-10 law school increases the length of the confirmation process by 16 percent; being on the law review adds another 49 percent to that length; having held a clerkship at circuit court adds 6.3 percent; and clerking for the U.S. Supreme Court adds another 41 percent.

7. Rick Hasen at Election Law Blog has a post pointing to a paper by Michael Solimine, “The Fall and Rise of Specialized Federal Constitutional Courts.”

8. OK, like Anderson, on one level I understand why Senator Rubio is blocking the President Obama’s nominee to fill a spot on the U.S. District Court for the Southern District of Florida — one must throw red meat to the fan base from time to time, especially one who harbors aspirations of a presidential run, and the GOP base cares a great deal about judges. All the same, the move is puzzling because, according to the HuffPo story at the link, it was Rubio who recommended this nominee to President Obama in the first place. I guess the senator was for him before he was against him.

Image Credit: Administrative Office of the U.S. Courts, modified by Tintazul, and used under a CC BY-SA 2.5 license. Source: Wikimedia Commons and U.S. Courts website.

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