Yesterday, the Senate Judiciary Committee approved the nomination of Akin Gump’s Patricia Millett to the D.C. Circuit. Her nomination now moves on to the full Senate.

The committee voted 10-8 to approve Millett’s nomination. Take a guess what all the voters had in common? Yes, the 10 Democrats voted “Aye” and the 8 Republicans voted “Nay.” Yet even while voting her down, the Republicans went out of their way to note that Millett was qualified for the post, but opposed her on the bogus argument Senator Grassley has been pushing that the D.C. Circuit is “underworked.”

During the hearings, Senator Grassley cited two anonymous letters, presumably from D.C. Circuit judges, to support his stance. Sounding very “Secret Plan to End the Vietnam War,” the anonymous poll felt very unscientific and shady.

Now we’ve got a hold of the secret survey Grassley sent judges. It’s as entertaining as his Tweets

Grassley’s been pushing the “D.C. Circuit judges are basically on year-round vacation” argument for awhile now, and it’s still dumb. But Senator Grassley needs something to do while NYU continues to give him the finger on all his actually valid requests.

Now he has a secret weapon in the quixotic campaign to prove that the D.C. Circuit is doing nothing: two anonymous statements from D.C. Circuit judges saying that they’re doing just fine. From the Constitutional Accountability Center:

On July 25, Senator Charles Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, used the public stage of the Committee’s hearing for D.C. Circuit nominee Nina Pillard to announce that he had recently sent a letter to the judges of the D.C. Circuit asking for their comments – anonymously – as to whether the court’s caseload warrants more judges. At the hearing, Senator Grassley quoted from two anonymous replies saying no.

Senator Grassley did not release the letter he sent to the judges, nor did he say when he’d sent it. He did not say how many replies he’d actually received, nor whether he’d disclosed the full content of the two replies from which he quoted.

Anonymous anecdotal evidence — the last refuge of a scoundrel?

The Constitutional Accountability Center managed to get the letter Grassley sent the judges eliciting this “evidence,” and his survey is kind of a joke. It’s most likely these responses came from judges, but Grassley explicitly asks the judges to “refrain from signing or otherwise indicating authorship in order to guarantee anonymity,” so really who knows what individual hanging around the D.C. Circuit actually wrote these responses. Well, the NSA probably knows, but that’s it.

1. Including Mr. Srinivasan’s confirmation, based on your experience does the current caseload of the D.C. Circuit merit filling additional judgeships at this time? Please explain.

Hardly scientific. It’s easy to get someone to say something incredibly stupid anonymously. If you don’t believe me, scroll down and click the red button toward the bottom of this post. In addition to the problems outlined by the Constitutional Accountability Center in the quote above, an anonymous survey of such a small, high-profile group loses the value of fact-checking and refutation. Do these underworked judges really have a backlog of decisions to render? Are these judges notoriously light in written opinions? The answers to these questions place the judges’ comments in context and yet Senator Grassley shielded these not-so-courageous judges from any challenge.

But the survey goes on:

2. Some assert the D.C. Circuit handles some “complex regulatory” cases. Based on your experience, does the complexity of certain cases heard by the D.C. Circuit compensate for the comparatively low level of appeals filed, heard, and decided by the court?

By “some,” Grassley means a metric ton of former D.C. Circuit judges, up to and including the current Chief Justice. But that guy upheld Obamacare so screw him. The fact that Grassley chose not to inform his colleagues that he asked this question is curious. If his anonymous sources really felt the D.C. Circuit did not need additional judges, surely they prepared thoughtful answers to the most invoked response to the underworked argument. How does Grassley let the most obvious counter-punch to his core claim go by unanswered? Perhaps because even his sources couldn’t muster a good answer.

3. To your knowledge, has the D.C. Circuit cancelled scheduled oral arguments during the last three years because it lacked cases to hear on those days?

Um…. Here’s what the Constitutional Accountability Center had to say:

The third question posed by Senator Grassley in his letter asked whether the court had “cancelled scheduled oral arguments during the last three years because it lacked cases to hear on those days.” Once again, did anyone respond? And why ask for an anonymous response here? Why not ask the court directly?

Yeah. That. This isn’t an opinion question. Just ask the clerk of the court for a list of scheduled oral argument days that got cancelled. Grassley did not cite any responses to this question, so it must not have gone well for him.

Despite the problems with his methodology, I’m going to praise Senator Grassley for his effort. In the modern political era, he was under no obligation to perform research — shoddy or not — of any kind. If Grassley just spouted off that the D.C. Circuit was underworked based on nothing but his personal fever dreams, about half the Senate would have picked up his argument and ran with it. Any form of intelligence gathering deserves an approving nod.

Even Grassley’s installation of an anonymous complaints box for the D.C. Circuit.

(Grassley’s complete letter can be viewed on the next page….)


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