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Why is Senator Grassley Playing Hide-the-Ball Over the D.C. Circuit?

July 26, 2013
 
On July 25, Senator Charles Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, used the public stage of the Committee’s hearing for D.C. Circuit nominee Nina Pillard to announce that he had recently sent a letter to the judges of the D.C. Circuit asking for their comments – anonymously – as to whether the court’s caseload warrants more judges.  At the hearing, Senator Grassley quoted from two anonymous replies saying no.   
 
Senator Grassley did not release the letter he sent to the judges, nor did he say when he’d sent it.  He did not say how many replies he’d actually received, nor whether he’d disclosed the full content of the two replies from which he quoted. 
 
As we’ve since learned, Senator Grassley sent the letter – which can be viewed here  on May 24, 2013.  This was more than a month after Senator Grassley introduced a bill to eliminate three seats on the D.C. Circuit (of 11 authorized judgeships) based on his argument that the court’s workload does not justify filling them.  So how much relevance can Senator Grassley really assign to what the judges think if he proposed to gut their court without asking them first?  Indeed, Senator Grassley announced this extreme proposal without the benefit of any study, let alone the views of the D.C. Circuit or the Judicial Conference of the United States.  In fact, a letter dated April 5, 2013 to the Judiciary Committee from the Judicial Conference with its views on the staffing of the federal courts did not contain any recommendation to eliminate or not fill seats on the D.C. Circuit.     
 
It also turns out that Senator Grassley, contrary to the impression he gave at the Pillard hearing, asked the judges not one but three questions in his letter.  The first question was the one he mentioned.  But here’s question two:
 
Some assert the D.C. Circuit handles some “complex regulatory” cases.  Based on your experience, does the complexity of certain cases heard by the D.C. Circuit compensate for the comparatively low level of appeals filed, heard, and decided by the court? 
 
Did Senator Grassley receive any replies to this question? In any event, those who have served on the D.C. Circuit – Republican and Democratic appointees alike – have made it very clear, publicly and NON-anonymously, that the court’s caseload is in fact complex and unique.  For example, as former D.C. Circuit Chief Judge Pat Wald -- who served on that court for more than twenty years -- has explained:
 
The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions. . . My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases.  The nature of the D.C. Circuit’s caseload is what sets it apart from other courts.
 
And no less an authority than the Chief Justice of the United States, John Roberts, also a former D.C. Circuit judge, has stated of that court: 
 
It is when you look at the docket that you really see the differences between the D.C. Circuit and the other courts.  One-third of the D.C. Circuit appeals are from agency decisions.  That figure is less than twenty percent nationwide.  About one-quarter of the D.C. Circuit’s cases are other civil cases involving the federal government; nationwide that figure is only five percent.  All told, about two-thirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is less than twenty-five percent nationwide.
 
The third question posed by Senator Grassley in his letter asked whether the court had “cancelled scheduled oral arguments during the last three years because it lacked cases to hear on those days.”  Once again, did anyone respond?  And why ask for an anonymous response here?  Why not ask the court directly?
 
In fact, why not ask the court, on the record, for its views as to all these questions? Surely no one would seriously contend that the Congress of the United States should determine the appropriate number of a court’s judges based on anonymous polls.  Senator Grassley claimed he’d asked the judges for anonymous replies so they could feel free to speak candidly.  But federal judges are hardly shrinking violets when it comes to expressing their views; moreover, they have life tenure, specifically to protect them from political repercussions when their opinions may be unwelcome or controversial. 
 
In October 1995, when Senator Grassley chaired the Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, he held a hearing called “Examining the Caseload of the U.S. Court of Appeals for the District of Columbia Circuit and the Appropriate Allocation of Judgeships.”  (This was during the Clinton Administration; notice a pattern?)  At that hearing, Senator Grassley seemed to have had no problem soliciting the NON-anonymous views of the D.C. Circuit’s then Chief Judge, Harry Edwards, nor of D.C. Circuit Judge Laurence Silberman, both of whom submitted written testimony in their own names and appeared in person to testify.     
 
As we’ve previously shown (e.g. here and here), Senator Grassley’s proposal to eliminate the 9th, 10th and 11th seats from the D.C. Circuit is partisan and hypocritical, an effort at a mass filibuster of President Obama’s well-qualified nominees to this court.  The D.C. Circuit’s workload did not stop Senator Grassley nor his Republican colleagues from voting to confirm George W. Bush nominees Janice Rogers Brown and Thomas Griffith to fill the 10th and 11th seats on that court in 2005, when the workload was lower than it is now.   
 
Taking into account very active senior judges, Republican appointed judges currently have a sharp, 9-5 majority on the D.C. Circuit.  It seems pretty clear why Senator Grassley is trying so hard to prevent President Obama from filling the court’s congressionally authorized seats, and it’s not the court’s workload.