We remember when a "judicial emergency" was the Senate's way of calling attention to vacancies based on a court's caseload. Those were the good old days. Now Democrats are threatening to change Senate rules if Republicans don't acquiesce to their plan to confirm three new judges to the most underworked appellate circuit in the country.
That's the story behind the fight over the D.C. Circuit Court of Appeals, with the White House trying to pack the court that reviews much of its regulatory agenda. On Monday Senate Republicans blocked the third nominee to the D.C. appellate court in recent weeks, and Democrats with short memories of their judicial filibusters in the Bush years are claiming this is unprecedented. Majority Leader Harry Reid and other Democrats are threatening to resort to the so-called nuclear option, which would let the Senate confirm judicial nominees by a simple majority vote.
This is nothing but a political power play because the D.C. Circuit doesn't need the new judges. It currently has 11 authorized judgeships and eight active judges—four appointed by Democratic Presidents and four by Republicans. The court also has six senior judges who hear cases varying from 25% to 75% of an active judge's caseload. Together they carry the equivalent caseload of 3.25 active judges, according to numbers from Chief Judge Merrick Garland. That means the circuit has the equivalent of 11.25 full-time judges.
That's more than enough considering that the court's caseload is the lightest in the country. For the 12-months ending in September, the D.C. Circuit had 149 appeals filed per active judge. By comparison, the 11th Circuit had 778 appeals filed per active judge for the same period. If all three nominees to the D.C. Circuit were confirmed, the number of appeals per active judge would be 108, while a full slate on the 11th Circuit would be 583 appeals per judge. The national average of appeals per active judge is 383. The closest to the D.C. Circuit is the 10th Circuit, at 217 appeals.
Liberal Senator Pat Leahy claims that these comparisons don't matter because the D.C. Circuit handles complex rulemakings by federal agencies and sensitive national security cases. But the truth is that all the circuits handle complicated cases. And even many regulatory cases have been migrating to other circuits as some of the D.C. Circuit's stars have taken senior status.
According to the Administrative Office of the U.S. Courts, 42.9% of the D.C. Circuit's caseload is made up of administrative appeals of federal rules or regulations, the highest percentage of any circuit. In raw numbers, the D.C. Circuit is not carrying the heaviest load. That honor goes to the Second Circuit Court of Appeals.
Democrats are in a rush to confirm as many judges as possible because they know the clock is ticking on the Obama second term. Liberals have criticized the White House for its slow pace of nominations, but that isn't the fault of Republicans. Iowa Senator Chuck Grassley, the ranking Republican on Judiciary who has led the fight against more D.C. Circuit confirmations, has been entirely consistent. In the Bush years he opposed the nomination of a twelfth judge for the court on workload grounds.
GOP Senators watched for years as Senate Democrats blocked George W. Bush's nominees to the D.C. Circuit, including the eminently qualified Miguel Estrada and Peter Keisler. Republicans are right to say that the D.C. Circuit now has a full complement of judges following the unanimous confirmation of Obama nominee Sri Srinivasan in May.
Mr. Reid and his fellow Democrats are claiming that even if they establish a new standard of 51 votes to confirm appellate judges and executive-branch officials, they can keep the 60 vote standard for the Supreme Court. They're kidding themselves. If they change the rules to pack the D.C. Circuit, Democrats should understand they are also setting that standard for future Supreme Court nominees opposed to Roe v. Wade.