Photo of Iowa
For Immediate Release
July 10, 2013

How Many Judges are Needed on the D.C. Circuit? Double Standard for Bush and Obama Nominees

Hearing for Patricia Millet

Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Hearing on the nominations of:
Patricia Ann Millett, to be United States Circuit Judge for the District of Columbia Circuit
Gregory Howard Woods, to be United States District Judge for the Southern District of New York
Elizabeth A. Wolford, to be United States District Judge for the Western District of New York
Debra M. Brown, to be United States District Judge for the Northern District of Mississippi
Wednesday, July 10, 2013

Mr. Chairman,

    Before I begin the substance of my remarks, I join you in welcoming the nominees who are here today with their families and friends.  

    One of the nominations on the agenda today is that of Patricia Ann Millett, to be United States Circuit Judge for the District of Columbia Circuit, to fill the vacancy created by the confirmation of John G. Roberts, Jr. to be Chief Justice.

    I have previously expressed my opposition to including on the agenda today any nominee for the District of Columbia Circuit.
 
    First, as my colleagues are aware, there is a lack of consensus regarding the workload of the court; second, we are moving at a very quick pace on the nomination; and third, we are skipping over nominations that were submitted to the committee earlier than the D.C. Circuit nominations.    
    In fact, my concerns are identical to those expressed by Senate Democrats when President Bush nominated Peter D. Keisler to fill this particular vacancy in 2006.   For example, one of our colleagues stated:

          “Like my colleagues, I am not pleased that the committee is holding this hearing today.  As we wrote to you last week, Mr. Keisler was nominated only a month ago.  The question of whether another judge should be named to the D.C. Circuit is an issue that needs further study and discussion in this committee.”

    Another Senator stated, regarding the timing of Mr. Keisler’s hearing:

          “First, we have barely had time to consider the nominee’s record.  Mr. Keisler was named to this seat 33 days ago.  So, we are having this hearing with astonishing and inexplicable speed.  The average time from nomination to hearing for the last seven nominees to that court is several times that long.”

That Senator also commented on my third point – skipping over nominees.  In 2006 he said,

          “I am especially surprised we are pushing forward, given that Mr. Keisler is now leap-frogging ahead of several nominees.”

    My point is – both parties have raised concerns.  And they should be addressed before we move forward with nominations to the Court of Appeals for the D.C. Circuit.

    I would acknowledge that in 2006, the hearing for Mr. Keisler went forward, even with the concerns expressed by my Democratic colleagues.  But what was the result?  Did Senate Republicans then steamroll the minority or quickly rubberstamp the nomination?  Did they change the rules of the Senate to ensure confirmation by a simple majority vote?

    Of course not; the Republican chairman at the time was exceptionally accommodating – perhaps ultimately to the detriment of Mr. Keisler’s nomination.  Senate Democrats used every procedure and strategy possible to delay consideration of the nomination.  This included boycotting committee meetings to avoid a quorum, invoking the two-hour rule to prohibit a committee meeting, and threatening a filibuster in committee.   Ultimately his nomination was returned to the President – even after a hearing had been held and his nomination was held over in markup.  Democrats blocked a final markup vote.

    During the next Congress, when Democrats held the majority, Mr. Keisler was renominated but was pocket-filibustered in committee.

    I would note, despite the treatment he received, Mr. Keisler submitted a letter in support of Ms. Millett’s credentials.  This is a real testament to his character.   I don’t recall many Democratic letters of support for Mr. Keisler at the time of his nomination.

     It is interesting that Mr. Keisler declined to take a position on whether additional judges on the D.C. Circuit are warranted.   

    But I would like to address in a little more detail my concerns about moving forward on the D.C. Circuit.  First, is the workload issue.  In 2006, Democrats argued that the D.C. Circuit caseload was too light to justify confirming any additional judges to the bench.  Since then, the caseload has continued to decrease.

    In terms of raw numbers, the D.C. Circuit has the lowest number of appeals filed annually among all the circuit courts of appeals.  In 2005, that number was 1,379.  Last year, it was 1,193, a decrease of 13.5 percent.   The next lowest circuit is the 1st Circuit which has 33 percent more appeals filed and yet has half as many judges.

    In terms of the numbers per authorized judgeship, again, the D.C. Circuit is the lowest.  In 2012, the D.C. Circuit had 108 total appeals filed per authorized judgeship.  This is the lowest in the nation.  By comparison the national average was 344, nearly 3 times higher.  Furthermore, this measure is also on the decline.   

    Total Appeals Filed per Authorized Judgeship in 2005 was 115.  In 2012, that number had fallen to 108.  What is noteworthy is that the number decreased, despite having one less judge due to the judgeship transferred to the 9th Circuit in 2008.

    But probably the best numbers to look at are those that measure the workload per active judge.  The caseload has decreased so much since 2005, that even with two fewer active judges, the filing levels per active judge are practically the same.  In 2005, with 10 active judges, the court had 138.  Today, with only 8 active judges, it has 149.  This makes the D.C. Circuit caseload levels the lowest in the nation and less than half the national average.

    We have recently confirmed judges to the 8th and 10th circuits.  It has been suggested that these circuits have caseloads lighter than the D.C. Circuit.  This is simply not accurate.

    The D.C. Circuit has fewer cases filed and fewer cases terminated than either the 8th or the 10th Circuits.  Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved by the court, respectively.  That is how you determine how busy a court is.

    It is quite revealing that the White House is attempting to rely on “pending cases” to try to compare the 8th and 10th Circuits to the D.C. Circuit.  But what the White House fails to mention is that “cases pending” measures case backlog – NOT how many cases are being added and removed from the docket.

   When looking at how many cases are added per active judge, the D.C. Circuit is lowest with 149.  It’s nowhere near the 8th Circuit’s 280 or the 10th Circuit’s 217.  When looking at the number of cases being removed by each court, the D.C. Circuit is once again the lowest at 149.  Again, the 8th Circuit and 10th Circuit courts are much higher at 269 and 218, respectively.
    
    So, by nearly every measurement, the facts show that the D.C. caseload is low and getting lower, raising serious doubts as to whether it needs more than eight active judges given its remarkably light caseload.

    The final point I’ll make about the workload is this.  I’m aware that the White House has been arguing aggressively that Republicans voted for Judge Griffith in 2005 – who for a short time served as the 11th active judge.  Therefore, they argue, we should now vote to fill the 9th, 10th, and 11th seats.

    However, again, what the White House fails to mention is that when we voted for Judge Griffith in 2005, Judge Edwards had already announced that he was taking senior status.  As a result, everyone knew that, in effect, we were voting for the 10th active judge, not the 11th seat.

    And as I’ve already explained, since that time, the numbers have fallen so much that the number of cases per active judge is roughly equivalent to 2005, even though there are two fewer active judges.

    A second major area of concern, in addition to the workload issue, is the quick timeline for consideration of this nominee.  The President nominated three individuals just 36 days ago.    Compare this to the history of previous D.C. Circuit nominations.
    
    According to my count, since 1980, there have been 29 individuals nominated to this court, including the three recent nominees.  The average wait for a hearing for these nominees is 130 days.  

    President Clinton’s nominees, on average waited 120 days, slightly below the overall average.  
    For President Bush, the delay more than doubled, with nominees waiting an average of 287 days for their first hearing.  But Senate Democrats insisted on a second hearing for three of President Bush’s nominees.  When those are factored in the nomination to hearing average jumps to 445 days.  

    Those averages don’t tell the story of the worst delays.  Miguel Estrada waited 505 days.  John Roberts waited 630 days for his first hearing and 721 days to his second hearing.   Brett Kavanaugh waited 277 days for his first hearing and didn’t complete the committee hearing process until an astounding 1,019 days later.  

    In contrast, today’s nominee has waited only 36 days. Not only are President Obama’s nominees receiving a hearing in a shorter time, but also at a much quicker pace.  Today’s hearing is the tenth hearing this year during which we will have considered a total of 28 judicial nominees.   

    Compare the favorable treatment of President Obama during the beginning of his second term versus President Bush’s first year of his second term.  

    At this stage in President Bush’s second term, the Committee had held not ten hearings with 28 judicial nominees, but only 3 hearings for 5 nominees.  All were hold-overs from the previous Congress.  In fact, for the entire year of 2005, Senate Democrats only allowed 7 hearings for 18 judicial nominees.  Again, we have already exceeded that – 10 hearings and 28 judicial nominees.

    So, Mr. Chairman, I am disappointed that today we are moving forward on this particular nomination for the D.C. Circuit.  We should first have held hearings on the workload.  We should not have leap-frogged over other nominees who have been waiting in committee so we could expedite this nomination.  And we should have given more time to members to review the qualifications and record of the nominee.

    Thank you.  I look forward to the testimony.