Talking Through Their Hats: The Opposition to President Obama’s D.C. Circuit Court Nominees

by Sidney Shapiro

June 05, 2013

In the old television series, "Cheers," barfly and braggart Cliff Clavin was a guy who was forever "talking through his hat," offering up an endless supply of ridiculous factoids and explanations. Cliff made for good television, but the same cannot be said for the Senate Republicans who Cliff Clavin in Cheers.jpgseem to be borrowing his approach. That's what's at work with the Republican effort to block President Obama’s nomination of three distinguished lawyers to fill longstanding vacancies on the D.C. Circuit Court of Appeals by eliminating the open positions. The GOP claims the appointments are unnecessary because the circuit doesn’t need the judges – describing the nominations as “court packing.”

What utter nonsense! Even Cliff Clavin would blush at the argument! It's so absurd that I can't imagine even the Republicans believe it. The obvious reason that the GOP opposes the nominations is that filling these long-vacant seats will mean that more judges on the court will have been appointed by Democratic presidents than Republican ones.   That, of course, is what happens when we have elections. In that sense, the opposition is more than nonsensical; it is an effort repeal the system established by the Constitution for the appointment of judges.

Let's dispense with the merits — to use the term loosely — of the GOP's argument. Statistics from the Federal Judicial Center indicate that there were an average of 1,152 cases pending (not yet decided) in the D.C. Circuit during the eight years of the Bush administration. The same average for the four years of the Obama administration is 1,362 pending cases. (A comparison of the last four years of the Bush administration and the first four of the Obama administration reveals a similar result: an average of 87 fewer pending cases in the Bush administration.)   Moreover, because no nominations have been confirmed to the court since 2006 (until last month), the number of pending cases per judge has grown from 119 in 2005 to 188 today. By the way, in defense of history, the phrase “court packing” refers to an effort during the Roosevelt administration to add more judges to the Supreme Court – not to eliminate existing seats, as the Republicans would like to do here. The Republicans were happy enough to fill five existing vacancies on the D.C. Circuit when George W. Bush was President, even though, as noted, the workload was about the same or lighter than it is now. 

Nor can it be argued that the existing eight judges somehow should be able to handle the existing caseload. As a former Chief Judge of the D.C. Circuit, Pat Wald, has pointed out, 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.”

At various times, a circuit court may have more judges appointed by a president from one political party than the other, depending on the pattern of presidential elections. The reason more judges currently serving on all of the circuit courts were appointed by Republican presidents is that Republicans have won more presidential election than Democrats since 1980.  As long as the judges are well qualified, and generally within the mainstream of judicial thought, the Senate traditionally has accepted the president’s choice. While this is not a perfect record – both parties at times have opposed qualified candidates for ideological reasons, these exceptions do not justify the Republican’s actions, which in effect are an attempt to repeal the last presidential election. The President is entitled to a vote on his nominees, and it is likely that if the Senate votes, it will concur in the nominations. This is precisely what the Republicans are trying to avoid, their Cliff Clavin-esque nonsense about the workload of the circuit notwithstanding.

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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