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Don't Short the D.C. Circuit

4:08 PM, Jul 27, 2010 • By ADAM J. WHITE
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Although most court-watchers' eyes are fixed on the Supreme Court, it remains prudent to pay attention to the lower courts, too. Law professor Carl Tobias, writing at the National Law Journal, sees two vacancies on the U.S. Court of Appeals for the D.C. Circuit, and he wants Obama to fill them pronto.

Don't Short the D.C. Circuit

Supreme Court

A president needs no excuse to appoint more judges to the federal appellate courts. Judicial appointments are the president's prerogative -- and one of the most prized spoils of electoral victory.  But Tobias goes one step further: He argues that the president should appoint more D.C. Circuit judges, not merely as a matter of presidential discretion but as an absolute necessity in light of what Tobias sees as urgent circumstances. He urges the president to nominate two more judges to that court, and that the Senate must "promptly confirm" his nominees, or risk "imped[ing] speedy, inexpensive, and equitable disposition" of the court's docketed cases.

But Tobias's characterization of present circumstances is at odds with the facts.  The D.C. Circuit needs no more judges: According to the most recent statistics published by the Administrative Office of the U.S. Courts, the court already has the lightest active docket of all the federal circuit courts of appeals. The court's docket shrank by ten percent last year.

The court does have two nominal "vacancies," but neither of them has slowed the court's work. One is a "vacancy" in name only: It arose when Judge A. Raymond Randolph took senior status, but Judge Randolph still actively hears cases (much to the dismay of critics of his consistently strong national security decisions).  The other vacancy occurred five years ago, when then-Judge John Roberts was appointed to the Supreme Court, but Judge Roberts's departure roughly coincided with the arrival of three new judges. One of those judges filled a seat that had been vacant since 1999; the other two "replaced" two judges who took senior status many years earlier, but who also continue to hear at least some cases.

In fact, the sheer lack of any need for more D.C. Circuit judges was emphasized by the President's and Congress's decision to transfer a third "vacant" D.C. Circuit seat (previously held by another senior judge who still hears cases) to the Ninth Circuit in 2007.

Thus, while Tobias blames the lack of D.C. Circuit appointments on the White House's "preoccup[ation] with intractable problems left by earlier administrations" -- namely, "the Iraq and Afghanistan wars, the [Guantanamo] prison and the worst recession since the Great Depression" -- the true reason for the lack of D.C. Circuit appointments is much simpler: the court doesn't need more judges, and the president and Senate don't care to burn their limited resources on unnecessary appointments to the court.  In fact, the sheer absence of any need for more D.C. Circuit judges was made all the plainer by the president and Congress in 2007, who transferred another vacant D.C. Circuit seat to the Ninth Circuit.

Finally, even setting all of that aside, it would be immensely irresponsible for the Senate to "promptly confirm" President Obama's future nominations, as Tobias urges.  There is no reason to expect, as Tobias hopes, that President Obama will take care to nominate "highly qualified" nominees.  In fact, there's all the reason to doubt it, after President Obama reportedly attempted to give away a D.C. Circuit as a shortcut solution to one of his more intractable political problems.  Such conduct is utterly irresponsible, given that (as Tobias notes) the D.C. Circuit plays a critical role in adjudicating important regulatory and national-security cases. D.C. Circuit nominees deserve more, not less, scrutiny.

Adam J. White is a lawyer in Washington, D.C.

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