Yesterday, President Obama announced the nominations of Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins to fill three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. The announcement is another shallow ploy by the Obama administration to pack arguably the second most powerful court in the country when it is clearly not necessary.
Congress has authorized 11 judgeships for the D.C. Circuit, but the court is not busy enough to justify all of these positions. Other circuits have a heavier workload such as the 2nd and 11th Circuits, which Senator Chuck Grassley the Ranking Member of the Senate Judiciary Committee has attempted to address with proposed legislation to move these D.C. Circuit positions to places where they are needed. He has also proposed to eliminate one of the positions. In a released statement Senator Grassley said:
“It’s hard to imagine the rationale for nominating three judges at once for this court given the many vacant emergency seats across the country, unless your goal is to pack the court to advance a certain policy agenda. No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload. There were nearly 200 fewer appeals filed in the D.C. Circuit in 2012 than in 2005. In fact, the amount of cases that each active judge handles is nearly the same, despite having two fewer judges, in that same time frame. It’s hard to imagine any reason for three more judges, no matter who nominates them.”
Additionally, the Judicial Conference, the policy-setting body of the federal courts, has suggested that another court, the 9th Circuit, is the busiest in the nation.
The conference has recommended that the San Francisco-based court receive four new permanent judgeships, a recommendation based on factors including “filings per panel, the mix of cases, the proportion of oral hearings versus submission of briefs, the contributions of senior judges and the geography of the circuit,” according to a spokesman for the federal courts.
With all of these judicial needs in other circuits why is the President addressing the least busy of the circuits with three new appointees? The reasoning might be that the White House has recently been frustrated by key decisions by the D.C. circuit against Obama's agenda. The circuit overturned the administration's regulation clamping down on power plant pollution that crosses state lines, rejected its attempt to require large graphic health warnings on cigarette packages and found that Obama exceeded his power in bypassing the Senate to make recess appointments.
This leads to speculation that Obama is trying to circumvent Congress as he attempts to pack the court. Senator Grassley, remarked that:
“News reports have claimed over and over that the White House wants to put more of their own judges on the D.C. Circuit because President Obama is looking for ways to circumvent Congress. My Democratic colleagues have made their intentions clear when they said the President needed to fill the court by whatever means necessary and that the D.C. Circuit was ‘wreaking havoc’ on the country by opposing their policies. Those who advocate for this type of court-packing to obtain an advantage in public policy debates, misunderstand the purpose of the legislative and judicial branches of our federal government. It’s our job to make legislative decisions and the courts’ job is to resolve cases and controversies. The last thing members of Congress should want is the courts doing our job.”
The D.C. Circuit Court also has an impact not only throughout the United States, but also internationally since many of the cases relate to the balance of power in Washington and the review of the actions of federal agencies. Further four current Supreme Court Justices have served on the D.C. Circuit Court and it is known as a training ground for the highest court.