Democrats, others react to Grassley's proposed legislation to cut D.C. Circuit

By Jessica M. Karmasek | Apr 12, 2013

WASHINGTON (Legal Newsline) -- Democrats, advocacy groups and government think tanks reacted sharply to U.S. Sen. Chuck Grassley's proposed Court Efficiency Act, with some saying the GOP senator's proposed legislation is simply court packing.

On Wednesday, during a confirmation hearing on the nomination of Sri Srinivasan to the U.S. Court of Appeals for the District of Columbia Circuit, Grassley announced he is introducing legislation that would reduce the number of judgeships on the D.C. Circuit from 11 to eight.

Grassley, R-Iowa and ranking member of the Senate Judiciary Committee, said the legislation would reduce the number of seats on the D.C. Circuit, but also add a seat to the Second and Eleventh circuits.

The measure, he said, would be a "significant step towards rectifying the extreme disparities between the D.C. Circuit and the Second and Eleventh circuits."

The D.C. Circuit has the fewest number of appeals filed per authorized judgeship, Grassley said, pointing to last year's statistics from the Administrative Office of the U.S. Courts.

Meanwhile, the Eleventh Circuit has five times as many appeals filed -- 583 compared to the D.C. Circuit's 108.

Grassley contends the legislation is an "efficient allocation of resources" and would save taxpayer dollars.

Sen. Patrick Leahy, D-Vermont and chairman of the judiciary committee, took issue with Grassley's proposal, pointing to the subject matter of the D.C. Circuit's cases.

"They are often complex cases, so raw caseload data does not fairly reflect the work of the judges on this court," he said.

Indeed, the D.C. Circuit is considered by some to be the second most important court in the country, after the U.S. Supreme Court.

The court often is responsible for resolving critically important cases involving the separation of powers, the role of government, the rights of federal officials, and the decisions of a vast array of administrative agencies.

In fact, it was the D.C. Circuit that ruled Obama's "intrasession appointment" of three new members to the National Labor Relations Board was an unconstitutional abuse of power because he could not make those appointments without Senate confirmation because the Senate was not in recess.

"With respect to those caseload numbers, however, the Administrative Office of U.S. Courts indicates that the D.C. Circuit has a caseload per active judge of 188 pending appeals. This is similar to the caseload per active judge on several other courts to which the Senate has already confirmed nominees this year, including the First, Third and Tenth Circuits," Leahy continued.

"It is also higher than the caseload per active judge when Senate Republicans moved forward to confirm President Bush's nominations to the D.C. Circuit just a few years ago."

Sen. Chris Coons, D-Delaware and who chaired Srinivasan's hearing, sided with Leahy in a floor statement later Wednesday.

"The D.C. Circuit court is often called the second most important in the nation, because, like the Supreme Court, it handles cases that impact Americans all over our country. Regularly, it hears cases on issues ranging from terrorism and detention to the scope of federal agency power," Coons said. "Yet it is critically understaffed."

He continued, "This circuit court has not seen a nominee confirmed since President George W. Bush's fourth nominee to that court was confirmed in 2006.

"Today, more than 1,500 days after President Obama has taken office, four of the 11 seats on the D.C. Circuit are open, making it more than one-third vacant and putting the remaining judges under undue strain to decide the complex and important cases before this court."

Last month, Caitlin Halligan took her name out of consideration after Republicans blocked her nomination again and again for more than two years.

The People For the American Way, a liberal progressive advocacy group, also criticized Grassley's plan.

In a statement Thursday, Marge Baker, its executive vice president, argued the senator's "scheme" was introduced in order to preserve the court's current conservative makeup.

"Sen. Grassley's legislation is a transparent power grab to protect the court's sharp conservative bent," Baker said. "The D.C. Circuit Court of Appeals hears some of the nation's most complex and important cases, but Republicans have prevented President Obama from placing a single judge on the court despite the fact that four its 11 seats are vacant.

"The D.C. Circuit is unique among the nation's circuit courts, and the cases it hears are among the most complicated in our legal system: arguing that we need fewer judges on the court is absurd."

Baker said the legislation is simply court packing by another name.

"When President Bush was appointing judicial ideologues to the court, Sen. Grassley was perfectly willing to support every single one -- even when the caseload per active judge was lighter than it is now. And when Sen. Grassley thought Mitt Romney might be filling vacancies, we saw no sign of the bill that has now been introduced. Now that President Obama will be naming judges for another four years, Sen. Grassley claims there are too many," she said.

"The hypocrisy is breathtaking. I'm surprised he can make this proposal with a straight face."

The Constitutional Accountability Center -- a think tank, law firm and action center "dedicated to fulfilling the progressive promise of the Constitution's text and history" -- chided Grassley for even introducing the legislation during Srinivasan's hearing.

"It is disappointing that Senate Republicans would use his hearing primarily to recycle tired arguments about the workload of the D.C. Circuit that they rejected when President Bush was nominating judges," President Doug Kendall said in a statement.

"The legislation they proposed today is just a smokescreen to justify a future blockade of any nominees -- however qualified -- to this critical court," he said, calling it a "mass filibuster by another name."

On Wednesday, Grassley noted that his legislation would not impact the seat to which Srinivasan has been nominated.

And though legislation introduced in the Senate altering the number of judgeships is typically postponed until the beginning of the next President's term, if enacted, Grassley said his legislation will take effect immediately.

Obama would still have the opportunity to make two appointments, the senator explained. The only difference is that those appointments would be to the Second and Eleventh Circuits, rather than to the D.C. Circuit, he said.

Republican Sens. Orrin Hatch, Utah; Jeff Sessions, Alabama; Lindsey Graham, South Carolina; John Cornyn, Texas; Mike Lee, Utah; Ted Cruz, Texas; and Jeff Flake, Arizona are co-sponsoring the legislation. All are members of the judiciary committee.

From Legal Newsline: Reach Jessica Karmasek by email at

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