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. According to data from the Administrative Office of the U.S. Courts, 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 D.C. Circuit, but by last year that number had decreased by more than 13%, to the lowest for all federal appellate courts.
Ironically it is not just neutral statistics that show the lack of need for additional judges on the DC Circuit, it is the judges themselves of the DC Circuit who say they do not need more help.
In response to questions about the court’s workload, Chief Judge Merrick Garland recently provided the Senate Judiciary Committee with data indicating that the number of consolidated cases scheduled for oral argument per judge has been in steady decline, from 99 in 2003-2004, to 81 in 2012-2013. By virtually every measure, the D.C. Circuit is either last or nearly last when it comes to workload.
It is no wonder that even the D.C. Circuit’s judges have explained that they do not need additional colleagues. One judge recently informed the Senate Judiciary Committee that “[i]f any more judges were added now, there wouldn’t be enough work to go around.”3 Another judge wrote that “each judge’s work product has decreased from thirty-some opinions each year in the 1990s, to twenty-some, and even fewer than twenty, opinions each year since then.”
It is especially significant that Judge Merrick Garland writes the above as according to most legal experts he was on President Obama’s short list for the Supreme Court. For Judge Garland to be opposed is significant.
The facts and statistics lead the Attorneys General to come to a strong conclusion to this serious problem:
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. 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.
There is no need for more nominees to the DC Circuit and President Obama’s attempt at court packing must be stopped.