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October 24, 2013

Packing Washington's most crucial court

By and

The U.S. Senate will soon vote on the nominations of three individuals to the U.S. Court of Appeals for the District of Columbia Circuit. This court is widely regarded as a steppingstone to the Supreme Court. Because of its location in the nation’s capital, a considerable portion of its cases involve federal agencies.

This makes the D.C. Circuit a watchdog over the executive branch. It’s the most important appellate court in the federal judicial system when it comes to restraining overreaching, unilateral or unconstitutional actions by the president. Thus, what happens in this particular court should be of very serious concern to state governments and Americans nationwide, given the constantly increasing push by the federal government, particularly unaccountable federal bureaucracies, to intrude into state sovereignty and every facet of our everyday lives.

For these reasons, President Obama naturally wants to fill up the D.C. Circuit with judges of his choosing, who share his ideology and his unlimited view of executive power. Despite the fact that it is the most underworked appellate court in the country, the president is pressing ahead to fill judicial vacancies that have remained open for years.

Congress allotted 11 spots for full-time judges on the D.C. Circuit. There are currently eight full-time judges and six semi-retired judges who do the work of roughly three full-time judges. The D.C. Circuit’s caseload, however, has been steadily decreasing over the past two decades.

This stands in stark contrast to many other federal appellate courts that are overworked and understaffed owing to the president’s failure to nominate replacements for empty judgeships. For example, more than 580 appeals are filed per judge each year in the 11th Circuit, which hears appeals from Alabama, Florida and Georgia. The D.C. Circuit receives only one-fifth as many appeals each year.

Mr. Obama has nominated judges for about half of the current vacancies in the federal courts. There are 37 declared judicial “emergencies.” None of them are in the D.C. Circuit, and the president has made nominations for only 18 of those 37 emergencies.

In fact, there is such a lack of need for more judges in the D.C. Circuit that in 2006, eight Democratic senators, led by Patrick J. Leahy of Vermont and Charles E. Schumer of New York, sent a letter to then-Sen. Arlen Specter, who at the time was Republican chairman of the Senate Judiciary Committee, asking for a postponement of the confirmation hearing for one of President Bush’s nominees to that court (who was never confirmed) because the court’s low workload “did not warrant” more judges. They pointed out that, since 1997, “by every relevant benchmark, the caseload for that circuit has only dropped further.” Since then, the D.C. Circuit’s workload has dropped even more.

In an attempt to address this problem, Sen. Chuck Grassley of Iowa introduced legislation earlier this year that would eliminate the open seats on the D.C. Circuit and move them to other courts desperately in need of more judges. Some of the current D.C. Circuit judges weighed in on this debate in a letter to senators this summer. One of the judges said, “If any more judges were added [to the D.C. Circuit] now, there wouldn’t be enough work to go around.”

Why, then, is Mr. Obama pushing for more judges on the D.C. Circuit? The answer is pretty clear. The D.C. Circuit has ruled against the president’s agenda in several high-profile cases in recent years. Most notably, the court invalidated a rule applying the Dodd-Frank financial reform law, overruled a burdensome Environmental Protection Agency rule regulating cross-state power-plant emissions, and ruled Mr. Obama’s sham “recess” appointments to the National Labor Relations Board were unconstitutional. It’s no surprise that Mr. Obama is trying to improve his chances before the court by packing it with judges whom he thinks — rightly or wrongly — will rubber-stamp his policies.

In a time when federal spending has accelerated out of control and our national debt has gone through the roof, the Senate should not rush to confirm unneeded judges merely to serve an ideological end. The federal government must justify every cent of taxpayer money it spends, and it shouldn’t spend funds on judges the D.C. Circuit doesn’t need.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation, where Elizabeth Slattery is a senior legal policy analyst.

Originally appeared in the Washington Times

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