AGs urge Senate to block D.C. Circuit nominees, pass Court Efficiency Act

By Jessica M. Karmasek | Oct 29, 2013

WASHINGTON (Legal Newsline) -- The attorneys general of seven states are putting pressure on the U.S. Senate to stop President Barack Obama from "politicizing" the U.S. Court of Appeals for the District of Columbia Circuit.

The attorneys general of Alabama, Arizona, Georgia, Nebraska, Oklahoma, South Carolina and Texas sent a letter to the Senate Monday expressing their "serious concerns" about Obama's ongoing effort to appoint new judges to the D.C. Circuit.

The attorneys general -- all Republicans -- also urged the Senate to pass the Court Efficiency Act.

The bill was introduced in April by Sen. Chuck Grassley, R-Iowa and ranking member of the Senate Judiciary Committee. The legislation would reduce the number of seats on the D.C. Circuit from 11 to eight, but also add a seat to the Second and Eleventh circuits.

The attorneys general argue the importance of the D.C. Circuit; it is considered by some to be the second most important court in the country, after the U.S. Supreme Court.

Often, the court 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.

"When we appear before the court, on behalf of our states and the citizens we represent, we do so with faith that our judges take seriously their obligation to decide cases on the basis of the Constitution and the applicable law," they wrote.

"Regrettably, the circumstances surrounding President Obama's most recent nominations to the D.C. Circuit lead us to conclude that he is attempting to use that court to slant the playing field sharply in his favor with regard to challenges to his aggressive regulatory agenda -- an agenda that is otherwise unconstitutional or too controversial to be approved by Congress.

"Indeed, it is impossible not to conclude that this is a court-packing scheme when the uncontroverted facts show that there are many circuits whose need for additional judges far outweighs that of the D.C. Circuit."

The attorneys general point to data from the Administrative Office of the U.S. Courts to back up their arguments.

According to the office, last year the D.C. Circuit had 108 total appeals filed per authorized judgeship, while the national average was more than three times higher.

In 2005, there were 1,379 appeals filed in the court, but by last year that number had decreased by more than 13 percent, to the lowest for all federal appellate courts.

"Using judicial vacancies to promote a political agenda undermines the rule of law and threatens to erode public confidence in our courts -- something that Republicans and Democrats alike should seek to avoid," the attorneys general wrote in their three-page letter. "And in a time where judicial resources are scarce, and getting scarcer, the Congress should take seriously its obligation to allocate those resources where most needed.

"For these reasons, we urge you to reject President Obama's nominees to the D.C. Circuit, and to join your colleagues in allocating those judicial resources where they are needed by passing S.699, the 'Court Efficiency Act of 2013.'"

But some say there is no reason to block votes on the three D.C. Circuit nominees -- Patricia Millett, Cornelia "Nina" Pillard and Robert Leon Wilkins, all of whom were nominated by Obama in June.

"Just weeks after Republicans shut down the government, they're threatening to use the same strategy of obstruction to keep the first of three qualified nominees off the D.C. Circuit," Marge Baker, executive vice president of the People For the American Way, said in a statement Monday.

"There is no legitimate reason to block votes on any of these nominees. Republicans pushed for the confirmation of George W. Bush nominees to these same seats when the court's workload was similar or lower."

The PFAW notes that the D.C. Circuit actually had a smaller caseload when Republicans worked to fill the ninth, 10th and 11th seats with President George W. Bush's nominees.

Judge Timothy Tymkovich for the U.S. Court of Appeals for the Tenth Circuit -- a conservative who was nominated to the bench by Bush -- said during a Senate committee hearing last month that the court's caseload is much different from other circuits.

"The D.C. (Circuit) Court of Appeals has been excluded from the pure numerical standard. We employ a different process with that court, because of the uniqueness of their caseload. They have a heavy administrative practice," he said. "They have something like 120 administrative appeals per judgeship panel, versus about 28 for the other courts of appeals.

"So historically, those types of cases have driven a more complex and difficult evaluation. Those cases have multiple parties, typically issues of first impression, big records, things that make them somewhat outliers (compared) to some of the cases we see in the other circuits."

U.S. Supreme Court Chief Justice John Roberts, who once served on the D.C. Circuit, also wrote a law journal article discussing the court's unique caseload.

From Legal Newsline: Reach Jessica Karmasek by email at

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