“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn’t be enough work to go around.” – D.C. Circuit judge. June 2013
Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Hearing on the Nominations of:
Cornelia T. L. Pillard, to be United States Circuit Judge for the District of Columbia Circuit
Landya B. McCafferty, to be United States District Judge for the District of New Hampshire
Brian Morris, to be United States District Judge for the District of Montana
Susan P. Watters, to be United States District Judge for the District of Montana
Jeffrey Alker Meyer, to be United States District Judge for the District of Connecticut
Wednesday, July 24, 2013
Before I begin the substance of my remarks, I join you in welcoming the nominees who are here today with their families and friends.
Today’s hearing is the eleventh judicial nominations hearing this year during which we will have considered a total of 33 judicial nominees.
Compare this favorable treatment of President Obama during the beginning of his second term versus the first year of President Bush’s second term.
At this stage in President Bush’s second term, the committee had held not 11 hearings with 33 judicial nominees, but only 3 hearings for 5 nominees. And all of those were hold-overs from the previous Congress.
In fact, for the entire year of 2005, Senate Democrats only allowed 7 hearings for a grand total of 18 judicial nominees.
Again, we have already exceeded that number – 11 hearings and 33 judicial nominees.
Among the nominations on the agenda today is another nominee for the D.C. Circuit. I’ve indicated on a number of occasions that I believe it is a mistake to move forward with these nominations when there so much disagreement about whether these seats are even needed.
Notwithstanding the disagreement over the workload, the Chairman has indicated that he will move forward with all three nominees to the D.C. Circuit.
I disagree with that approach. But he is the Chairman and he sets the agenda.
But I would like to address in a little more detail why the D.C. Circuit’s workload simply doesn’t warrant additional judges at this time.
First I’d like to remind my colleagues that in 2006, Democrats argued that the D.C. Circuit caseload was too light to justify confirming any additional judges to the bench. Since that time, the caseload has continued to decrease.
In terms of raw numbers, the D.C. Circuit has the lowest number of total 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%.
If you look at the number of appeals filed 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, in 2012 the national average was 344, nearly 3 times higher.
In 2005, the total appeals filed per authorized judgeship was 115. And again, in 2012, that number had fallen to 108. What is noteworthy is that the number decreased, even though Congress transferred one judgeship to the 9th Circuit in 2008.
Stated differently, the total number of cases filed has fallen so much since 2005 that the number of filings per judgeship has decreased even though we have fewer authorized judgeships today than we did in 2005.
Perhaps the best numbers to examine 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 appeals filed per active judge. 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.
As I’ve said in the past. 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.
Now, I’d note 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. “Cases pending” does NOT measure how many cases are being added and removed from the docket.
When looking at how many cases are added, or filed, 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 terminated 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, an objective review of the caseloads reveals that the D.C. Circuit is very low. And it raises serious doubts regarding whether we need more than 8 active judges on that court.
Now, there is no question in my mind that the statistics make clear that the D.C. Circuit does not need any additional judges. And that is especially true if you use the standards that the Democrats set when they opposed Peter Keisler’s nomination to the D.C. Circuit in 2006.
But in addition to the statistics, I think it is extremely helpful to get input directly from the judges themselves.
By way of background, let me just say that when I chaired the Judiciary Subcommittee on Administrative Oversight and the Courts in the 1990s, I conducted a survey of the U.S. courts. Back then I asked the judges to provide their perspective on a variety of issues.
The insight that the judges were able to provide through that survey was invaluable.
Based on that experience, recently I sent a letter to the judges currently serving on the D.C. Circuit.
I asked the judges whether, based on their experience, the workload on the D.C. Circuit warranted additional judges. I also asked that those who cared to respond, to do so anonymously, so they could feel free to speak candidly.
I must say, the results were not surprising.
The judges themselves confirm everything I’ve been saying about the workload of this court.
As one judge put it:
“I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn’t be enough work to go around.”
Let me repeat that, because it is truly remarkable:
“If any more judges were added now, there wouldn’t be enough work to go around.”
Another Judge wrote:
“The Court does not need additional judges for several reasons. For starters, our docket has been stable or decreasing, as the public record manifests. Similarly, as the public record also reflects, each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.”
Again, this is not just me saying that the caseload is low.
These are judges currently serving on the D.C. Circuit. These judges say that if we confirm any additional judges, “there wouldn’t be enough work to go around.”
Who is in a better position than the judges to make an assessment about the court’s workload and the need for additional judges?
I would also remind my colleagues that the court currently has six senior judges. Combined with the eight active judges, that is a total of 14 judges serving on the court.
According to one of the judges on the court, the senior judges “will more than likely serve for another decade based on their respective ages and health.”
Likewise, another judge noted that the D.C. Circuit has “an extraordinary number of sitting senior judges (six) who are actually younger than the average age of U.S. senior judges.”
Based on this, it is clear that the senior judges on the court are contributing a significant amount of work, and will continue to do so for the foreseeable future. They serve because they want to, not because they have to.
This is all the more reason why the D.C. Circuit is the most underworked court in the country.
I’ll have a lot more to say about this as we move forward on these nominations.
But for now, I’d just conclude by saying that both the data, and now the judges themselves, confirm that the workload on the D.C. Circuit is exceptionally low. It is difficult to see why we would be moving forward with these nominations, especially in a time when we are operating under budget and fiscal constraints.
But nonetheless, I look forward to hearing from the nominees today. Your appearance before the committee today marks a significant accomplishment in your professional careers.
Congratulations on your nomination.