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Ark. Congressman introduces Stop Court Packing Act to eliminate three D.C. Circuit seats

By Jessica M. Karmasek | Jun 7, 2013

WASHINGTON (Legal Newsline) -- U.S. Rep. Tom Cotton, R-Ark., earlier this week introduced what he calls the Stop Court Packing Act, which would reduce the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit from 11 to eight.

Cotton introduced the "common sense legislation," also referred to as House of Representatives Bill 2239, late Tuesday in response to President Barack Obama's three, simultaneous nominations to the D.C. Circuit.

Obama said in a high-profile press conference, held in the White House's Rose Garden Tuesday morning, he will nominate Cornelia "Nina" Pillard, Patricia Ann Millett and Robert Leon Wilkins to the D.C. Circuit.

"The Stop Court Packing Act would eliminate three needless judgeships from the D.C. Circuit, saving millions of taxpayer dollars," Cotton said in a statement.

"This court has the lightest caseload of any federal appellate court in the country, and its docket is trending downward. Congress recognized these facts when it shrunk the court from 12 to 11 judges in 2008.

"Moreover, the D.C. Circuit hasn't had 11 judges since 1999, yet it has managed its shrinking caseload."

Cotton notes that the court's current makeup of eight judges is evenly split between judges appointed by Republican and Democratic presidents.

And in addition to the D.C. Circuit's eight active judges, it also has six senior judges who participate regularly in cases, the Congressman points out.

"In the private sector, this wouldn't even be a close call: these jobs are no longer needed, and they shouldn't be filled," he said.

Cotton argues that Obama "knows these facts," making his nominations to the court this week an "obvious effort" to pack a court that has "frustrated his liberal, big-government ambitions."

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.

"The D.C. Circuit has jurisdiction over regulatory agencies and it has routinely struck down the worst excesses of the Obama administration," Cotton said.

"This legislation will preserve an essential check and balance on President Obama's out-of-control regulatory agencies. From the IRS to the EPA to the NLRB, the last thing Arkansans need is more judges in Washington, D.C., making decisions for our state."

HR 2239 was introduced with no co-sponsors. It has been referred to the House Judiciary Committee.

A somewhat similar bill was introduced by U.S. Sen. Chuck Grassley, R-Iowa, in April.

Senate Bill 699, or the Court Efficiency Act, also proposes to reduce the number of judgeships on the D.C. Circuit from 11 to eight, but adds a seat to the Second and Eleventh circuits.

Grassley, ranking member of the Senate Judiciary Committee, contends the legislation is an "efficient allocation of resources" and would save taxpayer dollars.

The bill was assigned to the judiciary committee in April. It hasn't moved since, mostly because of a Democrat-controlled Senate.

Carl Tobias, the Williams Professor of Law at University of Richmond's law school and a keen observer of the judicial nomination process, said in an interview Wednesday Grassley's legislation, much like Cotton's, doesn't take into account the kind of cases the D.C. Circuit is charged with handling.

Tobias also shot down Republicans' arguments that Obama is packing the court.

What President Franklin Roosevelt proposed in 1937 -- a law allowing him to appoint up to six new justices to the U.S. Supreme Court -- is court packing, Tobias said.

"Obama is just filling vacancies versus creating new seats," the law professor explained.

From Legal Newsline: Reach Jessica Karmasek by email at

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