On Tuesday, I testified at a House Judiciary Committee hearing that posed the nonsensical question, "Are More Judges Always the Answer?"
This is a committee whose Republican members include Darrell Issa, Steve King, and Louie Gohmert, so it will come as no shock to anyone that a topic that sounds like a segment on a Fox News show was not designed to dispassionately explore the nuances of judicial nominations and the workloads of federal judges.
So what was this hearing really about?
It turns out it was actually about President Obama's nomination of three highly qualified individuals to the U.S. Court of Appeals for the D.C. Circuit, the court right below the Supreme Court in importance. You might ask why the House of Representatives is conducting a hearing on a subject that is the constitutional purview of the Senate, but the future of the D.C. Circuit is so important that it's getting the full right-wing, high-volume Sturm und Drang treatment, even in places it doesn't belong.
Of course the real action is on the other side of the Hill where Republicans in the Senate are doing everything they can think of to prevent the president from filling the three seats out of 11 that are currently vacant on the court. The Republicans are threatening a triple filibuster of all the nominees -- no matter how qualified they are -- claiming absurdly that there just isn't enough work for the full complement of 11 judges the law requires. They began carrying out their threat today. Don't be fooled. This fight isn't about judges' workloads; Republicans are deathly afraid that this key court will someday make rulings that they don't like, and they will do absolutely anything to prevent that from happening.
The first volley in this battle came today in the Senate when the nomination of the supremely qualified Patricia Millett faced a cloture vote to end debate and bring her nomination to a final yes-or-no vote. But Millett's backers couldn't get the 60 votes needed to end debate. Soon to follow will be law professor Cornelia "Nina" Pillard and U.S. District Judge Robert Wilkins. Now that the Republicans have succeeded in blocking the uncontroversial and highly regarded Millett for purely partisan reasons, the pressure for eliminating the filibuster on judicial nominees will be intense. It looks increasingly likely that the Filibuster Wars of this past summer are back.
There is a great deal at stake. We believe no court, and certainly not the crucial D.C. Circuit, should be forced to do its job with 27 percent of its seats empty. It's like telling a football team they can only use eight players on Sunday, instead of 11. The country can ill-afford to have this critical component of our judicial system send less than a full team into the game.
The Republicans have become so unhinged over this issue that Senator Chuck Grassley and others have accused President Obama of "packing the court" by making the nominations at all.
Nominating qualified men and women for vacant judgeships isn't some kind of illegitimate act, or underhanded power grab. Presidents have been filling open seats on the D.C. Circuit since the days of Grover Cleveland. By the Republicans' logic Presidents Ronald Reagan, George H.W. Bush, and George W. Bush were D.C Circuit "court packers." In fact, I recall in 2003, when, just like today, only eight of 11 seats were filled, Senator Orrin Hatch called that a "crisis situation," when the caseloads were even lighter than now. Maybe I missed it, but I don't remember the Republicans telling President Bush to leave those seats vacant. President Obama, just like President Bush, takes the position that if the D.C. Circuit has 11 seats, then there should be 11 judges sitting in them.
It is one thing to oppose a president's nominees because you think they aren't qualified or profoundly unacceptable (as we have on a number of occasions), it's quite another to say the president has no right to make the nominations at all, and then to misuse Senate rules to prevent their full consideration.
Setting aside the disingenuous Republican arguments about "court packing," these are the facts:
The D.C. Circuit handles some of the most complex, lengthy, sensitive litigation in the federal courts. Its cases are characterized by long trials, multiple plaintiffs and defendants, armies of lawyers, massive records, and long, technical opinions. That's why Tenth Circuit Judge Timothy Tymkovich, who was appointed by President Bush, has testified that the way the D.C. Circuit is evaluated must be different from other courts. He concluded unequivocally on behalf of the committee of judges that makes recommendations to Congress about staffing the courts that "we haven't seen any reason to reevaluate" the size of the D.C. Circuit.
The Republicans claim this court doesn't have enough to do. That charge is absurd and completely dishonest. The plain fact is that the court's workload has increased significantly in recent years.
In 2003, when President Bush put forward John Roberts for the ninth seat on the D.C. Circuit, there were 1,001 pending cases. In 2005, when he sent up Janice Rogers Brown and Thomas Griffith for the tenth and eleventh seats, there were 1,313 pending cases. And today, the trend upward continues, with 1,479 pending cases.
Looked at a different way, with only eight of 11 seats filled, the caseload is currently at 185 cases per active judge. In 2003, when John Roberts was confirmed to the circuit, the court dealt with 111 cases per active judge. In 2005, the confirmations of Judges Brown and Griffith resulted in 119 cases per active judge. Even if all three currently open seats were filled tomorrow, the cases per active judge would be 134. Suddenly, with a Democratic president in office, the definition of what constitutes an insufficient workload has changed.
The stakes are so high because the D.C. Circuit is the federal appeals court that most closely oversees the actions of federal agencies on topics like the environment, consumer protections, workers' rights, banking regulations, executive power, and other vital issues. It digs deeply into central disputes over how the government functions. And, despite its name, its decisions reach far beyond the District of Columbia, to touch every single American in every corner of the country. That's why the Republicans are in full freak-out mode. All courts matter, but this court really matters, and they simply don't want any more judges there whom they don't like. Sadly, they are willing to turn logic on its head, ignore their own record, make misleading arguments, and threaten the traditions of the Senate to stop this president from doing his job. (Where have we heard that before?)
The Constitution makes a promise to the American people that our government will function in a way that will "establish Justice." It is the absolute obligation of Congress and the president to ensure that our judicial system is healthy and fully able to do its job. And if one political party is willing to prevent that from happening by abusing the rules of the Senate in the name of naked ideological warfare, then senators concerned with their duty will be left with no choice but to change the rules.
This fight is not just about the fate of three nominees to the D.C. Circuit, it's about the fate of the nation. That's why the Republicans are pushing so hard, and it's why the rest of us have no choice but to push back even harder. And do it right now.