The appellate court facing the most complex workload in the country is also tiny and overworked. Only the First Circuit has fewer active slots, and with three vacancies, the D.C. Circuit has fewer judges than its sibling courts with 11 active judges.

So it should come as no surprise that some senators are actively trying to shrink the D.C. Circuit.

The crux of their beef is that actually filling the three vacancies on the court would constitute court packing, because no one on the Hill has bothered to pick up an AP U.S. History textbook and figure out what “court packing” means.

But when you strip away the partisan stupidity and actually look at the numbers, there’s a really good argument in favor of “court packing” because this Circuit could use an extra judge or two…

First of all though, shrinking the D.C. Circuit is monumentally stupid and no one makes a remotely good argument for it.

The “court packing” claim is just kind of embarrassing. Court packing is classically defined as FDR’s plan to expand the Supreme Court in order to tilt the balance of the Court in favor of approving of New Deal policies. The operative word is “expand,” as in, make new justices instead of wait for the others to die or retire.

And then senators say stuff like this:

“I’m concerned about the caseload of this circuit and the efforts to pack it,” Grassley complained during a Senate Judiciary Committee hearing last week, charging the administration — six times — with court-packing.

One would expect Senator Chuck Grassley to understand what court packing actually is, since he lived through it. Alas no. Senator Grassley, best known for sending tweets like “I now h v an iphone” and the enigmatic “Ûü” (which I’m pretty sure is what Thor’s hammer is made out of), bases his allegations of court packing on President Obama nominating people to fill pre-existing, but vacant, seats on the D.C. Circuit. Grassley often takes to Twitter to lament that the History Channel shows programs like American Pickers instead of history documentaries, and now we know why: he’s never bothered to learn history outside the one-hour documentary format.

Filling vacant seats is not “court packing,” it’s “fulfilling the President’s legal obligation.” The fact that Obama is likely to appoint non-Republican jurists is not court packing, but part of the system. This is why it’s nice to win elections — you get to nominate judges because it reflects popular will. The proper translation of “court packing” for Grassley is “when the black guy gets to make a nomination, it’s ‘packing.'”

And Democrats should get some measure of blame for Republicans feeling annoyed that Obama is nominating three judges to the D.C. Circuit rather than two. The seat previously occupied by Chief Justice John Roberts is among those waiting to be filled, and Democrats stalled President Bush’s efforts to fill it from 2005 until Obama’s election. Yeah, that was unfortunate, but not a warrant for holding up the judges who left after President Obama was elected (well, Judge Randolph left before Obama was sworn in, but he left three days before the 2008 election… he knew what was up).

Anyway the “court packing” canard has gathered steam in the conservative rage machine and Grassley is pushing a bill to shrink the D.C. Circuit back to eight seats, which just so happens to coincide with its current, overworked composition.

Since some other conservatives cherish making more arguments that aren’t historically inaccurate, the quasi-intellectual argument is that the status quo featuring four Republican appointees and four Democratic appointees is perfect, so why mess that up?

Well, it’s not how any other court works or was designed to work, but that’s neither here nor there. No one seemed to have this profound spirit of bipartisanship while the Republicans held the presidency for all but four years from 1969-1992. And that’s because the argument has little to do with bipartisanship. For a court that decides the proper function of environmental and labor regulations, a 4-4 stalemate is a perfectly acceptable solution for Republicans who want regulations stymied. The 4-4 makeup isn’t a balance, it’s a slim Republican majority.

But while that’s the barely concealed popular wisdom of Republicans, they may be wrong about that in a way that hurts both sides. The 4-4 stalemate idea assumes a controversial case will get an en banc hearing where it can get neutered into nothingness. As the D.C. Circuit Review pointed out, when there are only eight active judges:

That means that when a panel of three active judges issues a unanimous decision, as in Cobell, all of the other active judges on the court must vote in favor of rehearing for the case to go en banc–assuming the panel members vote to defend their decision.

If a court functionally can’t have en banc hearings, it’s a broken court regardless of ideological leanings.

The Judicial Conference, the non-partisan organization that is supposed to evaluate the sizes of the circuits, thinks the D.C. Circuit is just fine with 11 judges. The Senate just needs to fill those seats.

However, there’s a good argument that a little “court packing” is in order. Since the D.C. Circuit was set at 11 judges, the caseload has grown — substantially — and the cases are much more difficult than those routinely facing other circuits:

In addition to lacking over one-third of its authorized judges, the Circuit’s specialized and complex caseload definitely justifies filling the rest of the current vacancies. As Chief Justice Roberts has written, one-third of D.C. Circuit appeals are from agency decisions. Often, these administrative law appeals have enormous documentary records, implicate complex statutes and agency guidance, and may involve numerous parties and amici curiae — making them far more time-consuming than other types of cases. In any event, since the last judge was confirmed to the D.C. Circuit (Thomas Griffith, in 2005), the caseload has increased more than 50% from 119 pending cases per active judge to 188 pending cases per active judge.

Obviously a proposal to give President Obama another couple of nominations over the three pending would never overcome a Senate filibuster. If the Senate were at all reasonable — and it’s not — the solution would be to let Obama nominate judges to fill the open slots and then expand the court beginning with the next president so, on paper, Republicans and Democrats have an equal shot of filling those seats.

And, in reality, Hillary can fill those seats.

Republicans Charge Obama With Court-Packing For Trying To Fill Empty Seats [Huffington Post]
Senators Tussle Over Proposal To ‘Unpack’ Key D.C. Court [NPR]
Is the D.C. Circuit Too Small To Go En Banc? [D.C. Circuit Review]
Sorry, Senator Grassley, We Need More Judges on the D.C. Circuit [National Women's Law Center]


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