[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
ARE MORE JUDGES ALWAYS THE ANSWER?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 29, 2013
__________
Serial No. 113-53
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
----------
OCTOBER 29, 2013
Page
OPENING STATEMENT
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
WITNESSES
The Honorable Charles E. Grassley, a U.S. Senator from the State
of Iowa, and Ranking Member, Senate Committee on the Judiciary
Oral Testimony................................................. 33
Prepared Statement............................................. 35
C. Boyden Gray, former White House Counsel, George W. Bush,
Boyden Gray & Associates PLLC
Oral Testimony................................................. 37
Prepared Statement............................................. 39
Nan Aron, President, Alliance for Justice
Oral Testimony................................................. 50
Prepared Statement............................................. 52
Carrie Severino, Chief Counsel and Policy Director, Judicial
Crisis Network
Oral Testimony................................................. 55
Prepared Statement............................................. 57
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Joe Garcia, a Representative
in Congress from the State of Florida, and Member, Committee on
the Judiciary.................................................. 4
Material submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 65
Material submitted by the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 70
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 91
Letter from the Constitutional Accountability Center (CAC)....... 95
Supplemental Material from C. Boyden Gray, former White House
Counsel, George W. Bush, Boyden Gray & Associates PLLC......... 97
Letter from John D. Bates, Secretary, the Judicial Conference of
the United States.............................................. 100
ARE MORE JUDGES ALWAYS THE ANSWER?
----------
TUESDAY, OCTOBER 29, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 2:48 p.m., in room
2141, Rayburn Office Building, the Honorable Bob Goodlatte,
(Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Coble, Smith of Texas,
Bachus, King, Franks, Poe, Marino, Gowdy, Amodei, Holding,
Collins, DeSantis, Conyers, Scott, Johnson, and Garcia.
Staff present: (Majority), Shelley Husband, Chief of Staff
& General Counsel; Allison Halataei, Parliamentarian & General
Counsel; David Whitney, Counsel; Branden Ritchie, Deputy Chief
of Staff & Chief Counsel; Kelsey Deterding, Clerk; (Minority)
Perry Apelbaum, Minority Staff Director & Chief Counsel;
Danielle Brown, Parliamentarian; Susan Jensen, Counsel.
Mr. Goodlatte. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
The Ranking Member has stepped out, as has the gentleman
from Virginia, for two different missions. I expect them both
to return, and we are grateful to have the gentleman from
Florida with us, but we think we will go ahead and proceed with
the hearing, and I will recognize myself for an opening
statement, and then Mr. Conyers when he returns.
On June 4, the President nominated three individuals to a
single circuit court. These nominations, together with the
recent confirmation of another, are intended to pack the D.C.
Circuit to its absolute capacity of 11 authorized judgeships.
Given that, first, each judgeship costs taxpayers more than
a million dollars a year; second, that there are eight
vacancies designated as emergencies on our nation's circuit
courts and the President has not submitted a nomination for the
majority of these positions; the D.C. Circuit's workload has
steadily dropped over the years; and the court has six active
senior judges who contribute substantially to its work; it is
appropriate to ask whether filling these judgeships is the
highest and best use of limited taxpayer dollars and to
consider alternative explanations as to why the President has
decided to pursue such an aggressive and virtually
unprecedented strategy with respect to these vacancies.
In announcing his nominations, the President asserted, ``If
we want to ensure a fair and functioning judiciary, our courts
cannot be short-staffed.'' So is this court in need of a
dramatic expansion?
In absolute numbers, it has the lowest number of total
appeals, with 1,193. That is down more than 13 percent from
2005. Measured by the number of oral arguments heard per active
judge, it dropped from 99 cases in 2003-2004 to 81 recently.
In terms of signed written decisions per active judge, the
court averages 17, less than one-third the national average of
58.
The court clearly has the lowest caseload in the country,
and we aren't even considering the work of the six senior
judges on the D.C. Circuit who are estimated to do the work of
three-and-a-quarter full-time active judges.
If the court isn't short-staffed, why are the President and
his allies so determined to fill it up?
But before examining that, let's review the Keisler
standard for the D.C. Circuit vacancies articulated by eight
Democratic senators in a July 27, 2006 letter. At the outset
they stated, ``Mr. Keisler should, under no circumstances, be
considered, much less confirmed, by the Committee before we
first address the very need for that judgeship and deal with
the genuine judicial emergencies identified by the Judicial
Conference.''
They asserted, ``by every relevant benchmark, the caseload
for that circuit has only dropped'' and insisted ``before we
rush to consider Mr. Keisler's nomination, we should look
closely at whether there is even a need for this seat to be
filled and at what expense to the taxpayer.''
What criteria did those Democratic senators endorse to
measure the judicial workload? One, written decisions per
active judge; two, number of appeals resolved on the merits per
active judge; and three, total number of appeals filed.
Since 2005, these numbers are significantly down in two out
of three categories for the D.C. Circuit.
In closing, they emphasized the letter reflected the
unanimous request of Democratic senators. So the Keisler
standard is the standard of ``all Democratic senators.'' That
standard, when applied honestly and consistently, leads to one
conclusion: the D.C Circuit doesn't need additional judges.
So our colleagues in the other body took a firm position.
Or did they? Consider one Senate Democrat's recent comments
about the D.C. Circuit, who told an audience in March, ``Our
strategy will be to nominate four more people for each of those
vacancies.'' And, ``we will fill up the D.C. Circuit one way or
another.'' That doesn't sound like he is concerned about the
court's caseload.
A few months later, some groups united behind this effort,
complaining that a majority of the court's senior judges, who
still can and do decide cases, were appointed by Republican
presidents. That doesn't sound like they are concerned about
the court's ability to function, either.
But sadly, this isn't the first time the President and his
allies have packed a circuit court with unneeded judges at a
time when its workload is declining. The Fourth Circuit has
actually canceled argument dates for two successive months
because the court ``did not have cases needing argument on
Friday in October or December.''
As recently as December 2007, there were only 10 active
judges on that court. Today, there are 15. Of that number, six
were nominated by the President and confirmed by the same
Democratic senators who wrote so earnestly about their regard
for taxpayers shortly before.
The Fourth Circuit's total appeals filed are down 7 percent
since 2006. Twelve judges handled the higher caseload back
then. Since that time, there has been a 25 percent increase in
judges. Looking at the caseload, that doesn't explain this.
Maybe the President and Senate Democrats see judicial
authorizations as a floor, not a ceiling. Maybe also their view
is that the courts exist not merely to resolve cases and
controversies but to advance their political agenda. When the
Senate Majority Leader said, ``We're focusing very intently on
the D.C. Circuit'' and ``We need at least one more. There's
three vacancies. And that will switch the majority,'' he
clearly wasn't referring to the court's needs.
The campaign to politicize our courts and to specifically
target the second-highest court in the land risks not merely
wasting scarce public funds but something more valuable, public
confidence in the judiciary's independence.
The evidence is clear: this campaign has nothing to do with
fair and functioning courts. It has everything to do with
ideology and power politics.
And the Ranking Member now being present, I will ask the
gentleman from Florida if he would like to be recognized.
Mr. Garcia. Thank you, Mr. Chairman, just for a moment.
I would like to ask for unanimous consent to submit a few
things into the record.
The first is a Constitutional Accountability Center letter
to Chairman Coons, Senate Judiciary Subcommittee, regarding
caseloads and the need for judges worldwide.
The second is the People for the American Way's ``The D.C.
Circuit's Caseload: Countering the GOP's Hypocrisy and
Distortion'' claims it is too light to justify having more than
8 of its 11 seats filled.
Number three, the statement from retired Chief Judge
Patricia Wald before the Senate Bankruptcy Committee.
And the fourth is a statement from Timothy Tymkovich, chair
of the Committee on Judicial Conference before the Senate
Bankruptcy Committee of September 10, 2013.
Mr. Goodlatte. The Chair thanks the gentleman.
Without objection, those documents will be made a part of
the record.
[The information referred to follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Goodlatte. We are expecting Senator Grassley, one of
our four witnesses, to arrive, but his schedule is complicated,
as are the House Members'. Therefore, we will proceed with the
witnesses who are already present, and we will welcome Senator
Grassley when he arrives.
If the witnesses would all rise, we will, as is the custom
of this Committee, begin by swearing in the witnesses.
[Witnesses sworn.]
Mr. Goodlatte. Thank you very much. Let the record reflect
that the witnesses responded in the affirmative.
I will now proceed by introducing first Ambassador C.
Boyden Gray, former White House Counsel to President George
H.W. Bush and current founding partner of the D.C.-based law
firm Boyden Gray & Associates, LLP.
Ambassador Gray was appointed Special Envoy for European
Affairs by Secretary of State Condoleezza Rice in January of
2008. He was appointed as the United States Ambassador to the
European Union by President George W. Bush in January of 2006.
Ambassador Gray currently serves as a member of the Board
of Directors at the Atlantic Counsel, the European Institute,
and FreedomWorks.
He received his J.D. from the University of North Carolina
School of Law and his Bachelor's degree from Harvard
University.
We are now joined by Senator Grassley, so I will go back to
the beginning and introduce him, and then come back and
introduce Ms. Aron and Ms. Severino, and then we will come back
to the senator for his testimony.
So our first witness today is the Honorable Charles E.
Grassley, senior United States Senator representing the State
of Iowa for over 30 years. Senator Grassley currently serves as
Ranking Member of the Senate Judiciary Committee, and also
serves on the Finance, Agriculture, and Budget Committees.
Prior to being elected to the Senate, Senator Grassley
served in the U.S. House of Representatives from 1975 to 1981,
and the Iowa House of Representatives from 1969 to 1975.
Senator Grassley earned his B.A. and M.A. from the
University of Northern Iowa, and pursued a Ph.D. at the
University of Iowa.
Our third witness is Ms. Nan Aron, Founder and President of
Alliance for Justice, a national association of public interest
and civil rights organizations. In her role, Ms. Aron has a
particular focus on the judiciary. In 1985, she founded the
Judicial Selection Project through Alliance for Justice. Prior
to AFJ, Ms. Aron served as an attorney for the ACLU's National
Prison Project. She also taught at Georgetown and George
Washington University Law Schools.
Ms. Aron received her J.D. from Case Western Reserve
University School of Law and her B.A. from Oberlin College.
And our fourth and final witness is Ms. Carrie Severino,
Chief Counsel and Policy Director of the Judicial Crisis
Network. In her position, Ms. Severino speaks and writes
regularly on judicial issues, the Federal nomination process,
and state judicial selection. She has also testified before
Congress and briefed elected officials on these judicial and
constitutional issues. In addition, Ms. Severino has experience
as a law clerk to Justice Clarence Thomas of the United States
Supreme Court and to Judge David Sentelle of the United States
Court of Appeals for the D.C. Circuit.
She received her J.D. cum laude from Harvard Law School and
a B.S. in biology summa cum laude from Duke University.
Welcome to all of you.
Senator Grassley, it is particularly great to have you on
this side of the Capitol, and you are welcome to give your
testimony.
Each of the witnesses' written statements will be entered
into the record in its entirety. I ask that each witness
summarize his or her testimony in 5 minutes or less. To help
you stay within the time, there is a timing light on your
table. When the light switches from green to yellow, you will
have 1 minute to conclude your testimony. When the light turns
red, it signals that the witness' 5 minutes have expired.
Senator Grassley?
Senator, if you don't mind, in keeping with the custom of
this Committee, we have sworn in the other three witnesses
before you arrived, and I neglected to do that. So if you are
willing to be sworn in, as we always do with all of our
witnesses in our hearings, do you swear that the testimony you
are about to give shall be the truth, the whole truth, and
nothing but the truth, so help you God?
[Witness sworn.]
Mr. Goodlatte. Thank you. Let the record indicate the
witness answered in the affirmative, and now he is welcome to
give his testimony.
TESTIMONY OF THE HONORABLE CHARLES E. GRASSLEY, A U.S. SENATOR
FROM THE STATE OF IOWA, AND RANKING MEMBER, SENATE COMMITTEE ON
THE JUDICIARY
Senator Grassley. Mr. Chairman, Ranking Member Conyers, and
Members of the Committee, thank you for this opportunity.
Mr. Goodlatte. Senator, I think you may need to press that
button.
Senator Grassley. I have tremendous respect for the Federal
judiciary. We need to preserve, protect and strengthen it. As
legislators, we also have an obligation to be good stewards of
the taxpayer's money.
The Federal Government shouldn't expect a good result from
simply throwing additional money at an issue, especially during
these trying fiscal times.
Fortunately, one of the best ways to strengthen the
judiciary also happens to be the most cost-effective. I have
been committed to reallocating judicial resources in more
efficient ways for many years of the 33 years I have served on
the Judiciary Committee.
During the 1990's when I was Chairman of the Subcommittee
on Administrative Oversight and the Courts, I led a multi-year
effort to study the allocation of court resources, including an
examination of court caseloads and the allocation of
judgeships.
There has been some controversy over the years regarding
the D.C. Circuit, and some of that controversy has centered on
the D.C. Circuit's caseload.
My work on the court study ultimately led to a successful
effort during the Bush Administration to remove a seat from the
D.C. Circuit and reallocate to the 9th Circuit.
There are two important points about that effort. First,
Republicans--that is my party--worked to remove a seat from the
D.C. Circuit while a Republican occupied the White House.
Second, although the D.C. Circuit seat was removed immediately,
the new seat in California did not take effect until January of
2009.
In other words, we took away from President Bush the
opportunity to make that nomination. But we did not give him
the opportunity to make an additional nomination to the Ninth
Circuit. Instead, we delayed that authority until a new
President could make that nomination.
For additional context, I would like to remind people in
2006, the other side--meaning the Democrats--argued that we
should not fill any more than 10 seats on the D.C. Circuit
based upon that caseload, and we have letters that will show
that. So, they successfully blocked Mr. Keisler on that basis.
Since that time in 2006, the caseload statistics have
declined even further. They have fallen so much during the last
few years that the caseload per active judge today, with 8
active judges, is nearly the same as it was back then, with 10
active judges.
In fact, Chief Judge Garland, a Clinton appointee to the
D.C. Circuit, recently confirmed that the caseload has
continued to fall. According to Chief Judge Garland, the number
of cases scheduled for oral argument per active judge has
fallen steadily over the last 10 years. In 2006, there were 90
cases scheduled for oral argument per active judge. By the 2012
to 2013 term, the number had declined to 81.
Moreover, other judges on the court confirm that the
caseload simply doesn't merit additional judges. As one judge
wrote to me, ``I do not believe the current caseload of the
D.C. Circuit or, for that matter, the anticipated caseload in
the near future, merits additional judgeships at this time. If
any more judges were added now, there wouldn't be enough work
to go around.''
That is a current judge on the court saying, and so I say
again, if any more judges were added now, there wouldn't be
enough work to go around. Who is in a better position to know
the workload than the judges themselves?
Given that it seems so clear additional judges aren't
needed, why then would this President nominate not one, not
two, but three more judges to this court? Why would the
President make an aggressive push to confirm judges that aren't
needed? Remember, these judgeships come at a cost of roughly $1
million per judge, per year, and these are lifetime
appointments. So that is $1 million per year, for a lifetime
appointment.
Unfortunately, we know the answer. The other side hasn't
been shy about the reasons.
Four of the active judges on the court were appointed by
Republican presidents, and four were appointed by Democrat
presidents. But senior Members of the Senate majority have said
they need to ``switch the majority'' on the court.
So why is that? Why would they be intent upon switching the
majority?
Well, as one of the President's prominent allies put it,
``The President's best hope for advancing his agenda is through
executive action, and that runs through the D.C. Circuit.''
And we have all heard the President pledge that if Congress
doesn't act, then he will simply go around it through executive
order. But, of course, that strategy works only if the D.C.
Circuit rubber stamps those executive actions.
So, Mr. Chairman, that is a cynical and ideologically
driven approach to one of our nation's most respected courts.
And it is not how we should be making decisions to spend
millions of dollars on lifetime appointments.
I have offered a fair solution to this problem. The Court
Efficiency Act would remove one seat from the D.C. Circuit
entirely, therefore saving the taxpayers money. It would then
reallocate two other seats to circuits where they are needed,
the Second and the Eleventh.
Importantly, unlike in 2008, this legislation would take
effect immediately. In practical terms, this means that
President Obama would still be able to make these appointments.
He simply makes them to circuits where they are, in fact,
really needed.
Mr. Chairman, you titled this hearing, ``Are More Federal
Judges Always the Answer?'' Based upon the objective criteria
that I have discussed here today, the answer to that question
is clearly no.
For that reason, instead of focusing on confirming judges
who aren't needed, and in the process wasting millions of
dollars in taxpayer money, we should be looking for smart ways
to reallocate our judicial resources.
So, thank you again, Mr. Chairman, for this opportunity.
[The prepared statement of Senator Grassley follows:]
Prepared Statement of the Honorable Charles E. Grassley, a U.S. Senator
from the State of Iowa, and Ranking Member, Senate Committee on the
Judiciary
Mr. Chairman, Ranking Member Conyers, and Members of the Committee,
thank you for the opportunity to be here.
Our federal judiciary is special. I have tremendous respect for it.
We need to preserve and protect it. And we need to strengthen it.
As legislators, we also have an obligation to be good stewards of
taxpayer dollars.
The federal government shouldn't expect a good result from simply
throwing additional money at an issue. This is especially true during
these trying fiscal times.
Fortunately, one of the best ways to strengthen the judiciary also
happens to be the most cost-effective.
I have been committed to reallocating judicial resources in a more
efficient way for many years.
During the 1990s when I was Chairman of the Subcommittee on
Administrative Oversight and the Courts, I led a multi-year effort to
study the allocation of court resources. This included an examination
of court caseloads and the allocation of judgeships.
There has been some controversy over the years regarding the D.C.
Circuit. And some of that controversy has centered on the D.C.
Circuit's caseload.
My work on the court study ultimately led to a successful effort
during the Bush Administration to remove a seat from the D.C. Circuit,
and reallocate it to the 9th Circuit.
Let me emphasize two important points about that effort.
First, Republicans worked to remove a seat from the D.C. Circuit
while a Republican occupied the White House.
Second, although the D.C. Circuit seat was removed immediately, the
new seat in California did not take effect until January of 2009.
In other words, we took away from President Bush the opportunity to
make that nomination. But we did not give him an opportunity to make an
additional nomination in the 9th Circuit. Instead, we delayed that
authority until a new President could make that nomination.
For additional context, I'd remind people that in 2006, the other
side argued that we should not fill any more than 10 seats on the D.C.
Circuit based on the caseload. They successfully blocked Mr. Keisler on
that basis.
Since that time, the caseload statistics have declined even
further. They have fallen so much during the last few years that the
caseload per active judge today, with 8 active judges, is nearly the
same as it was back then, with 10 active judges.
In fact, Chief Judge Garland--a Clinton appointee to the D.C.
Circuit--recently confirmed that the caseload has continued to fall.
According to Chief Judge Garland, the number of cases scheduled for
oral argument per active judge has fallen steadily over the last 10
years. In 2006 there were 90 cases scheduled for oral argument per
active judge. By the 2012 to 2013 term that number had declined to 81.
Moreover, other judges on the court confirm that the caseload
simply doesn't merit additional judges. As one judge wrote to me:
``I do not believe the current caseload of the D.C. Circuit or, for
that matter, the anticipated caseload in the near future, merits
additional judgeships at this time. . . . If any more judges were added
now, there wouldn't be enough work to go around.''
That is a current judge on the court saying, ``If any more judges
were added now, there wouldn't be enough work to go around.'' Who is in
a better position to know the workload than the judges themselves?
Given that it seems so clear additional judges aren't needed, why
would the President nominate not one, not two, but three more judges to
this court?
Why would the President make such an aggressive push to confirm
judges that aren't needed? Remember, these judgeships come at a cost of
roughly $1 million per judge, per year. And these are lifetime
appointments. That is $1 million per year, for a ifetime appointment.
Unfortunately, we know the answer. The other side hasn't been shy
about its reasons.
Four of the active judges on the court were appointed by Republican
Presidents, and four were appointed by Democrat Presidents. But, senior
members of the Senate Majority have said they need to ``switch the
majority'' on the court.
Why is that? Why would they be intent on ``switching the
majority''?
Well, as one of the President's prominent allies put it, ``the
president's best hope for advancing his agenda is through executive
action, and that runs through the D.C. Circuit.''
And, we have all heard the President pledge that if Congress
doesn't act, then he will simply go around it through executive order.
But of course, that strategy works only if the D.C. Circuit rubber
stamps those executive actions.
Mr. Chairman, that is a cynical and ideologically driven approach
to one of our nation's most respected courts. And it is not how we
should be making decisions to spend millions of dollars on lifetime
appointments.
I have offered a fair solution to this problem. The Court
Efficiency Act would remove one seat from the D.C. Circuit entirely,
therefore saving the taxpayer money.
It would then reallocate two other seats to circuits where they are
needed, the Second and Eleventh.
Importantly, unlike in 2008, this legislation would take effect
immediately. In practical terms, this means that President Obama would
still be able to make these appointments. He simply makes them to
circuits where they are needed.
Mr. Chairman, you titled this hearing, ``Are More Federal Judges
Always the Answer?'' Based on the objective criteria that I've
discussed here today, the answer to that question is clearly No.
For that reason, instead of focusing on confirming judges who
aren't needed--and in the process wasting millions of dollars in
taxpayer money--we should be looking for smart ways to reallocate our
judicial resources.
Thank you again, Mr. Chairman, for the opportunity to be here.
__________
Mr. Goodlatte. Thank you very much, Senator. Depending on
your schedule, you are welcome to stay or go, because I know
you have a number of other commitments. But if you can remain
to take questions, we would love to have you stay.
Senator Grassley. Thank you.
Mr. Goodlatte. But we will leave that to your discretion.
Senator Grassley. I have to go.
Mr. Goodlatte. Thank you, Senator.
Senator Grassley. Thank you.
Mr. Goodlatte. Ambassador Gray, welcome.
Let me say to the other Members of the Committee,
Ambassador Gray has testified before this Committee on a number
of other occasions, and I had the honor of meeting with him
when I led a congressional delegation to Europe, to Brussels,
and met with him when he was our ambassador to the European
Union.
So, it is good to see you again.
TESTIMONY OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL, GEORGE
W. BUSH, BOYDEN GRAY & ASSOCIATES PLLC
Ambassador Gray. Thank you very much, Mr. Chairman, for
this opportunity to address this question of the D.C. Circuit.
I am not going to talk about the caseload numbers that Senator
Grassley just referred to. I think Carrie Severino is going to
look at that more carefully.
I do want to point out, though, the answer of one of the
D.C. Circuit judges to a question posed in a questionnaire by
Senator Grassley. ``If any more judges were added now, there
wouldn't be enough work to go around.'' I think it is pretty
clear that the view on our side is that this is an attempt to
tilt the outcomes of this court, and that is not good for the
kind of impartiality that the public is entitled to.
But I wanted to devote a little bit of time and what my
testimony addresses are the other ways in which adding judges
when they are not needed in a way that politicizes the process
undermines the collegiality which is necessary for reasoned
decision-making and careful thought.
Now, you may ask me for a definition of collegiality, and
of course it is working through issues in a common fashion, but
perhaps it might be contrasted with what happens when you don't
have it, and that is what the D.C. Circuit was like when I
first came to Washington. It was, as Felix Frankfurter
observed, ``a collectivity of fighting cats.'' Judge Harry
Edwards, who rescued--a Democratic nominee who rescued the D.C.
Circuit from this collectivity of fighting cats has written
that it was not uncommon when he first arrived for one of his
colleagues to say, ``Can I count on your vote?'' It sort of
evokes what Senator Reid said, that we need one more on the
D.C. Circuit, one more from his side, as it were.
I think that this is a bad thing to get back into. Judge
Edwards changed the rules, worked to improve collegiality. He
was very successful, and it was followed with great success by
Judge Ginsberg later, Judge Sentelle now, Judge Merrick
Garland. It is marked in part by a lack of en banc reviews
where you have a lot of second-guessing. The D.C. Circuit
discourages that because they like to think that the panels can
get it right and the panels don't matter in terms of the make-
up of the political appointment.
Judge Edwards has written that he witnessed occasions when
ideology took over and effectively destroyed collegiality
because the confirmation process promoted ideological
commitment. This is what I think your Committee is wise to
point out should not be allowed to reassert itself after so
many years of settled administrative law-making.
The Federal Judicial Center has identified nine as about
the limit of how big a court should be. Beyond that, you have
fragmentation. You have the law of the panel rather than the
law of the circuit. It is very hard as a practitioner to
understand exactly how to shape behavior, how to recommend, how
to advise on behavior if you have an unpredictable court, and
too many judges makes for unpredictability and lack of
coherence.
I think that Senator Schumer I think hit the nail on the
head when he said we will fill up this court in one way or
another, but it is based on the premise that somehow this
court, the way it has operated, has overruled or reversed or
blocked the current White House more than previous White
Houses, and this is just an erroneous assumption.
The data show quite clearly that President Bush in his 8
years was overruled at a higher rate than Obama was in his
first term, President Obama was in his first term, 16.7
percent. And this reversal rate has been pretty steady over the
last two or three decades, and I don't think it is worth
risking the collegiality and the reasoned decision-making that
we have enjoyed. Witness Judge Tatel's very nice comments about
Judge Sentelle on his retirement. The only point can be to
change the end result, and that is not a permissible reason for
making appointments.
Thank you.
[The prepared statement of Ambassador Gray follows:]
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__________
Mr. Coble [presiding]. Thank you, Ambassador Gray.
Ms. Aron, you are recognized.
Ms. Aron, your mic needs to be activated.
TESTIMONY OF NAN ARON, PRESIDENT,
ALLIANCE FOR JUSTICE
Ms. Aron. Thank you very much for the opportunity to
address a very important topic: the ability of our Federal
courts, the envy of the world, to efficiently, effectively, and
fairly administer justice for the people of the United States.
The Committee has posed the question, ``Are More New Judges
Always the Answer?'' I am not sure I can speak to the word
``always,'' but I can say without hesitation that today, with
more than 1 of 10 judgeships vacant, with caseloads rising
rapidly, and with the complexity of litigation increasing, the
answer to your question is yes, more judges are the answer. In
fact, we strongly concur with the judgment of the Judicial
Conference of the United States and the Chief Justice of the
United States that additional judgeships should be created in
many parts of the country in order to ensure that the
Constitution's promise of justice is fulfilled.
But the need for Congress to create new judgeships aside,
we believe the first step in resolving the crisis in our courts
is to fill all the existing district and circuit court seats.
As of today, there are 91 total vacancies. Astonishingly,
there are more empty judgeships now than when President Obama
took office almost 5 years ago. In fact, just among the states
that are home to Members of this Committee, there are a total
of 66 open seats. Strikingly, 34 of those seats are considered
judicial emergencies by the Administrative Office of the U.S.
Courts, meaning these courts are so overwhelmed they cannot
function properly.
This crisis has real-world consequences for real people.
When your constituents go to court, they face a judicial system
that is overburdened, overworked, understaffed, and
underfunded. Cases are delayed interminably. Decisions are
rushed. Because of burgeoning criminal caseloads, which must
take priority, civil actions are shoved aside. Small businesses
can't get resolution to problems that tie their enterprises
into knots. Contract disputes go unresolved. Individuals
seeking justice for discrimination, or fraud, or disputes with
banks or business or the government, are left hanging, often
for years.
Every American deserves his or her day in court. In the
circuit courts of appeals, cases are bigger, the stakes are
higher, and the consequences for all of us are more
significant, and that fact is doubly true for the D.C. Circuit
Court of Appeals.
There are currently three vacancies out of 11 seats on the
court that is often described as the second most important
court in the country. The court shouldn't be forced to do its
job with 27 percent of its seats empty. It is like telling a
football team they can only use eight players on Sunday,
instead of 11. The court can ill-afford to have this critical
component of our judicial system send less than a full team to
the game.
These are the facts. With the unique responsibilities to
oversee the actions of Federal agencies, the D.C. Circuit
handles some of the most complex, lengthy, sensitive litigation
in the Federal courts. Because of this unique caseload, when
there were only eight seats filled in 2003, Senator Orrin Hatch
called this a crisis situation.
But in addition to the special nature of its cases, the
plain fact is that this court's workload has increased
significantly in recent years.
With only eight of 11 seats filled, the caseload is
currently at 185 cases per active judge. In 2003, when John
Roberts was confirmed to the Circuit, that left 111 cases per
active judge. In 2005, the confirmation of Judges Brown and
Griffith resulted in 119 cases per active judge. Even if all
three seats were filled tomorrow, the cases per active judge
would be 134.
Given the stresses on the D.C. Circuit and the importance
of its legal mission, we are pleased that President Obama has
put forward a full slate of outstanding, well-qualified
nominees. When there are vacancies on the Federal court, the
president is required to nominate new judges, subject, of
course, to the advice and consent of the Senate. Article II,
Section 2 of the Constitution is crystal clear on this matter.
The President cannot ignore his constitutional obligations, and
neither should the Senate.
Mr. Chairman, new judges, whether those named to fill
existing vacancies or those chosen to serve in entirely new
seats, are indeed the answer if the question we ask is: Will
justice be done in the United States of America?
Thank you very much.
[The prepared statement of Ms. Aron follows:]
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__________
Mr. Coble. Thank you, Ms. Aron.
Ms. Severino, you are recognized.
TESTIMONY OF CARRIE SEVERINO, CHIEF COUNSEL AND POLICY
DIRECTOR, JUDICIAL CRISIS NETWORK
Ms. Severino. Thank you. I want to thank Chairman
Goodlatte, Ranking Member Conyers, and the distinguished
Members of the Committee for the opportunity to speak here
today.
This June, the President took the unusual step of staging a
Rose Garden announcement highlighting his simultaneous
nomination of three individuals to the Court of Appeals for the
D.C. Circuit. The President portrayed the D.C. Circuit as a
court in crisis. He suggested that the D.C. Circuit was short-
staffed, threatening our ability to maintain a fair and
functioning judiciary.
But the numbers tell a different story, and it is a story
that is broadly recognized by those familiar with the D.C.
Circuit. They show it to be the most underworked court in the
country, with a caseload that has dropped significantly over
the past decade.
There are many ways to measure a court's workload, but they
all tell the same story in this case. The most relevant
statistic, and the one that forms part of the Administrative
Office of the Courts' own formula to gauge workload for
determining judicial emergencies, is the number of annual
filings per judge. With its current complement of eight active
judges, equally balanced between Republican and Democratic
nominees, the D.C. Circuit has the lowest number of new filings
per judge of any circuit court. This is three to four times
fewer than the busiest courts.
The number of cases disposed of per judge is another metric
by which to gauge workload. Once more, the D.C. Circuit is the
court with the lowest numbers, and the highest numbers are
three to four times as many.
One can also look at the number of cases disposed of on the
merits. This is an even better gauge of the type of cases that
take up the most time for judges. And once again, the D.C.
Circuit is dead last. Circuits, including the Eleventh Circuit,
have up to five times as many cases as the D.C. Circuit.
Ms. Aron has pointed to the numbers of pending cases on the
Circuit. I am happy to talk more about the reason that is not a
relevant statistic later, but it broadly just points to the
amount of time it takes a case to work through the court, not
the amount of time the court itself is spending on it but just
the overall length of time.
Every circuit court has a unique balance of types of cases,
and the D.C. Circuit is no exception. Its role in hearing many
administrative challenges means it does get more than its fair
share of complicated regulatory issues, but that hardly makes
up for the heavily skewed absolute numbers of cases. The
average administrative law case may take longer to work through
than the average criminal case, but not three to five times as
long.
The statistics cited previously all presume that only the
eight active judges are carrying the court's caseload, but that
is far from accurate. According to the Chief Judge of the D.C.
Circuit, the six senior judges who hear oral arguments together
carry a workload equivalent to 3.25 active judges. Adding that
to the eight active judges, those are the full-time equivalent
of 11.25 judges serving on the D.C. Circuit currently. That is
more than the number of authorized seats on that court.
The judges responding to Senator Grassley indicated that
those senior judges were fairly young and healthy on the
average and could be expected to serve for another decade.
On an anecdotal level, this all confirms my experience on
the D.C. Circuit, which was that we are much less busy than my
friends clerking at other circuits at the time.
The President was correct about one thing in his Rose
Garden speech: there are courts that are truly short-staffed
and in crisis. The Administrative Office of the Courts, taking
into account the number and types of cases each circuit hears,
has identified eight appellate seats that constitute judicial
emergencies. But the D.C. Circuit is nowhere on that list.
The question, then, is: Why did the president choose to
make such high-profile nominations to a court that barely has
enough work to go around at a time when almost 70 percent of
Federal vacancies, including 75 percent of the judicial
emergencies, had no nominee? There is no neutral principle that
explains his move, suggesting that the timing and manner of the
three D.C. Circuit nominations was simply due to politics.
The D.C. Circuit enjoys a unique role as the court that
hears the lion's share of cases addressing administrative law
and regulatory agencies. Its position as a check on government
power puts it in the crosshairs of a president whose governing
style is characterized by aggressive use of administrative
agencies and an avowed desire to push the envelope to achieve
his goals when he has been stymied by Congress. Key Democratic
Senators have acknowledged this motivation behind the D.C.
Circuit nominations. We heard references to Senator Schumer's
comments about filling the D.C. Circuit up one way or another.
Senator Harry Reid has also pointed to political reasons to
move forward on the president's nominations to the D.C.
Circuit, complaining that the court was wreaking havoc in the
country. He said, ``We are focusing very intently on the D.C.
Circuit. We need at least one more. There's three vacancies, we
need at least one more and that will switch the majority.''
Our nation is struggling to get its financial house in
order, and our judiciary is laboring in many places with a
shortage of judges. This is not the time to increase the
burdens on taxpayers for a court that doesn't need new judges
or to divert scarce resources from where they are needed most.
The D.C. Circuit has been regularly canceling hearings. We need
judges where there are real judicial emergencies.
Congress should instead act to shield the American people
from the unnecessary financial burden of funding additional
judges simply to facilitate the President's aggressive policy
agenda. Thank you.
[The prepared statement of Ms. Severino follows:]
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__________
Mr. Goodlatte [presiding]. Thank you, Ms. Severino.
We will now begin the questioning under the 5-minute rule,
and I will begin by recognizing myself.
Ms. Severino, in her testimony, Ms. Aron argued that the
court needs more judges because it has more pending cases than
it did a decade ago. I note that in his response to Senator
Grassley, Chief Judge Merrick also included a stat that shows
the number of pending cases.
Can you briefly explain the distinction between appeals
filed per active judge, appeals pending, and appeals
terminated, as well as offer your understanding of which
caseload measures the Administrative Office relies upon as most
accurately reflecting the workload of individual judges?
Ms. Severino. Certainly. Appeals filed is obviously the
number of appeals coming in per active judge, the number of
appeals being filed each year, and that is the circuit actually
that the Administrative Office of the Courts uses as its
baseline for determining whether a judicial emergency exists.
So they clearly view that as the most relevant statistic.
The number of cases disposed also is a measure of how many
cases are being decided. So you can see, are the judges being
forced to work through more cases than another circuit.
Pending cases is, I think, doesn't make a lot of sense here
unless you are trying to find the one statistic in which the
D.C. Circuit isn't dead last compared to the other circuits.
Not that its numbers are even unusually high in terms of
pending cases. It is eighth out of the twelve circuits
considered. But it doesn't say anything meaningful at all about
the court's caseload. Pending cases are simply those that
haven't yet been terminated by the court and are making their
way through the process. So we would expect a fair amount of
cases simply because not every case is going to be decided
within 1 year, and a court could have a large number because of
true backlog reasons. If the court was short-staffed and
couldn't schedule hearings, we might see that pending cases
would say something about backlog.
But, in fact, in this case, the D.C. Circuit is actually
canceling hearings regularly. I will say it again: they are
actually canceling hearings for lack of cases to be heard in
oral argument. Thus, this number is clearly not pointing to the
fact that the court is overburdened in getting to these cases.
There are a lot of other reasons that I think explain the
pending cases number better in this case, including the fact
that it may just take a long time for parties to get their
motions going back and forth. Cases can disappear for a long
period of time because of dispute resolution. Cases can also
just be failure to prosecute and the court never finds out, and
after a certain number of years they just take them off the
docket.
So I think in this case, it is clear that the pending cases
statistic is not very meaningful and doesn't illustrate a lot
about what is going on in the D.C. Circuit.
Mr. Goodlatte. Thank you, and I will direct this question
to you as well. Ms. Aron made much of former Chief Judge Wald's
representation of the complex, time-consuming, labyrinthine
disputes over regulations that she said characterized the
court's docket. You acknowledged that the court has ``more than
its fair share of complicated regulatory issues,'' but
concluded ``that hardly makes up for the heavily skewed
absolute number of cases.''
Can you elaborate on the evidence that your opinion is
based on?
Ms. Severino. Having worked there, I certainly see that
these cases do take a longer period of time. Administrative
appeals run a broad range of types of issues. They can include
simple things like Board of Immigration appeals, up to complex
regulatory matters.
But the simple fact is that while it may take a longer
period of time than criminal cases, which are not as prevalent
in the D.C. Circuit, they don't take three times or five times
as long.
In addition, the case numbers used by the Administrative
Office of the Courts to determine judicial emergencies do take
into account the type of cases that are used. They are weighted
numbers. And again, the D.C. Circuit is nowhere on that list,
and I think that illustrates the judgment of the Administrative
Office in terms of what numbers are relevant in terms of
caseload.
Mr. Goodlatte. Ms. Aron, do you think the standards laid
out in the Senate Democrats' letter of 2006 regarding the
appointment of additional judges to the D.C. Circuit were fair
then? And regardless of whether you agreed with them at that
time, how is it fair for the public to expect these same
standards to not apply when the Democrats control the Senate
and the White House?
Ms. Aron. Well, first of all, I think we have to start with
what the Constitution actually says about judgeships, and it is
important to note that President Obama is simply carrying out
his constitutional task, an obligation of filling judgeships.
That is set out in the Constitution. He is only carrying out
his constitutional duty, and the Senate ought to confirm them
as soon as possible.
With the situation----
Mr. Goodlatte. So you don't agree with the Senate
Democrats' letter of 2006.
Ms. Aron. Well, I should say that with respect to the
nomination of Peter Keisler, it was an incredibly controversial
nomination. For one thing, Peter Keisler had worked in the
White House, and the White House----
Mr. Goodlatte. Right, but they weren't making their
argument based upon his qualifications or his potential
position on any judicial decisions he might have to make. They
were making their decision solely based upon the lack of need
to fill the judgeship based upon the workload of the court.
Ms. Aron. Right. Well, that was a situation where we
already had the ninth, tenth, and eleventh seats filled, and
then John Roberts was nominated to the Supreme Court. It was
only after several months that Peter Keisler's name came up,
and interestingly and for the record, it is important to point
out that the Republicans failed to move Peter Keisler's
nomination forward. They never held a Committee vote on his
nomination, and therefore never reported him out.
So, in essence, Republicans----
Mr. Goodlatte. Maybe there was merit to that Senate
Democrat standard that caused them to determine--and, in fact,
as Senator Grassley noted, it was in the same timeframe that
one seat was removed from the D.C. Circuit.
Ms. Aron. I think it is important to note now that Judges
Silverman, Doug Ginsberg, the Chief Justice, John Roberts,
Judge Timothy Tymkovich of the 10th Circuit, are all unanimous
in saying that given and because the workload of the D.C.
Circuit is so large, so important, so complicated, all of these
seats need to be filled. No one, no one questioned that except
senators----
Mr. Goodlatte. Well, let me interrupt because my time has
expired. But that would be even though the court has a smaller
caseload today and more judges to handle the cases when you
count both the active judges and the six senior judges, who are
carrying a considerable workload on the court.
Ms. Aron. Well, I would just say to that point that
President George W. Bush filled the ninth, tenth, and eleventh
seats on the court when the caseload per active judge was lower
than it is today. I would also point out that Senator Grassley
and his colleagues recently confirmed a judge to the Eighth
Circuit Court of Appeals, the Tenth Circuit Court of Appeals,
with caseloads lower than the D.C. Circuit.
So, in effect, filling----
Mr. Goodlatte. Let me ask you one more question here. In
May, the New York Times quoted you as saying that the D.C.
Circuit had ``frustrated the President's agenda.'' It sounds as
if you are suggesting that it is proper for judges to decide
cases based on subjective factors such as political ideology or
affinity to the person who nominated them rather than the rule
of law, and can you possibly justify that view?
Ms. Aron. Well, those were my views and still continue to
be. But the fact remains that presidents have an obligation to
fill existing vacancies regardless of what my views are on the
matter.
Mr. Goodlatte. Even if it wastes taxpayers' money?
Ms. Aron. I don't view access to the courts as wasteful of
taxpayers' money. In fact, I would view it as a priority.
Mr. Goodlatte. Well, access to the courts certainly would
be a priority, but if the court has been historically able to
function with fewer judges, it is not up to the Congress,
including the United States Senate with its advise and consent
power, to needlessly fill positions on the court when those
positions are not necessary to handle the caseload that has
been handled in the past and is not superior to that right now.
My time has expired, and the Chair will recognize the
gentleman from Georgia for 5 minutes for his questions.
Mr. Johnson. Thank you, Mr. Chairman.
I would first ask that a letter from Thomas Sussman,
Director of Governmental Affairs for the American Bar
Association, dated October the 29, 2013, addressed to yourself,
I would ask that it be entered into the record.
Mr. Goodlatte. Without objection, so ordered.
[The information referred to follows:]
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__________
Mr. Johnson. Thank you.
Mr. Goodlatte. And while we are doing that, I will also
seek unanimous consent to put in the record Senator Arlen
Specter, at the time chairman of the Senate--I'm sorry. It is a
letter signed by Senators Patrick Leahy, Chuck Schumer, to
Senator Arlen Specter, at that time Chairman of the Senate
Judiciary Committee, dated July 27, 2006, setting forth the so-
called Senate Democrats' letter standards.
Without objection, it will be made a part of the record.
[The information referred to follows:]
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__________
Mr. Goodlatte. The gentleman is recognized.
Mr. Johnson. Thank you, Mr. Chairman.
I want to point out before I begin that the entire budget
of the Federal judiciary makes up less than 1 percent of our
entire Federal budget. It is not driving budget deficits and
debt, and we know that this is not, this failure to adequately
staff our judiciary is not about saving taxpayer dollars. It is
really about forming a judiciary that has certain ideological
views, and it is my friends on the other side of the aisle that
seem to have that aspiration and have been working on that for
some time.
There is a serious need to fill judicial vacancies on the
Federal bench throughout this country. District court vacancy
rates are at historically high and unsustainable levels. The
number of vacancies that qualify as judicial emergencies due to
their high volume of case filings, the length of the vacancy
or, if it is a court with only one judgeship, is without
precedent. According to one of our witnesses today, according
to the Alliance for Justice, over 10 percent of all judges--
excuse me--over 10 percent of all judgeships in Federal trial
and appellate courts are unfilled.
The Brennan Center for Justice at New York University
School of Law likewise reports that these have been recently
higher than at any point since 2002. These vacancies are
hurting districts with the greatest need because district court
workloads are at record highs. But due in large part to the
Republican obstructionism, nominees to the Federal bench face
record wait times from nomination to current confirmation in
the Senate as compared to other recent Administrations.
Senate Republicans have blocked a historic number of
district court nominees during this particular presidency. In
my own state of Georgia, the Northern District, there are three
district court vacancies and two Eleventh Circuit Court
vacancies, both Georgia positions. Because we have two
Republican senators in Georgia, I think it is no surprise that
we have had these vacancies that have been unfilled for years
now. A couple of those district court appointments are judicial
emergencies, and still, instead of giving deference to the
President to nominate candidates of his choosing, we have
bargaining going on by our senators trying to install their
picks in exchange for allowing the President to get one pick
confirmed.
So it is almost like it is a game. And who is suffering? It
is the American people who have business before the court.
Justice delayed is justice denied, and it is really
incredible to me to think that we would look at our third co-
equal branch of government as a step-child and keep it from
doing what is fundamental in our Constitution, in our preamble
to the Constitution, to establish justice. I mean, that is the
first thing that is mentioned, and we are treating our
judiciary as if it were a step-child and something that we can
just lord over. It is wrong.
Is there any other explanation for the failure to confirm
judges for the Federal bench throughout the nation other than
what I have stated today? Does anyone want to answer that
question? Is there any other reason?
Ms. Severino. Congressman, I think there is that clear
additional reason, one that is identified by Russ Wheeler of
the Brookings Institution, no conservative apologist, and that
is the President's failure to move quickly to make nominations
to these seats. He identified that----
Mr. Johnson. All right. Well, let me stop you right there.
Ms. Aron, you apparently have some----
Ms. Aron. I would differ from the other witness. In fact,
90 percent of the vacancies today are due to the fact that
Republican senators, either two senators in some states or one
senator in other states, are blocking the progress of
candidates. The delay is due almost entirely to Republican
senators, and I am pleased to say that the President has
actually picked up the rate of nominations and now has out-
paced President Bush, and I think President Clinton in terms of
number of nominations.
So it is not the number of nominations. It is the fact that
they cannot get through the states, and once they are on the
floor, they are blocked by Republican senators.
Mr. Johnson. Thank you. I yield back.
Mr. Franks [presiding]. The Chair now recognizes Mr. Coble
for 5 minutes.
Mr. Coble. Thank you, Mr. Chairman. I appreciate that.
I want to revisit the New York Times quote. Ms. Aron, it
sounds to me as if you were suggesting that it is proper for
judges to decide cases based upon subjective factors such as
political ideology or affinity to the person who nominated them
rather than the rule of law. I find that irregular.
Ms. Severino, can you illuminate in this irregular darkness
in which I sit, responding to Ms. Aron's response?
Ms. Severino. I'm sorry. Could you repeat the question?
Mr. Coble. I said it appeared to me from the New York Times
quote that Ms. Aron was more concerned about ideology and
loyalty to the person doing the nominating than the rule of
law. This comes down irregular to me. Now, what am I missing?
Ms. Severino. Unfortunately, I have to agree with you. I
think her quote saying that we need to restore balance to the
court by filling empty seats and pointing to the fact that the
majority has made decisions frustrating the President's agenda
I think clarifies the reason that these seats are being filled
right now. All the discussion of judicial emergencies is
obviously not what is going on in the D.C. Circuit here. I
absolutely agree that judicial emergencies should be filled.
But given the fact that there is no such emergency in the D.C.
Circuit and that Ms. Aron has pointed to the President's agenda
as a reason to fill the seats, I think it is clear that that is
what is going on, not a real concern for filling the seats in
that circuit. Let's fill the judicial emergencies first.
Mr. Coble. Well, the circuit has the lowest workload in the
nation. Am I correct?
Ms. Severino. That is correct, whether you look at appeals
filed, appeals disposed of, appeals disposed of on the merits,
virtually any statistic.
Mr. Coble. Mr. Chairman, and I say to the witnesses, and
the panel, this seems to me to be an ideal case of where
prudence should prevail. Savings could be realized and no one
would be penalized. Am I missing the mark? Hopefully not. I
miss the mark from time to time.
Ms. Severino. Even if it is a small percentage of the
Federal budget, it seems like a good use of taxpayer money to
be prudent and not over-spend where we don't need it.
Mr. Coble. As Senator Grassley indicated, if we got more
judges, there wouldn't be enough work for them to go around. He
explained that one of the sitting judges stated that.
Ambassador--by the way, it is good to have North Carolina
exposure here, you and Ms. Severino. You didn't make the cut on
that, Ms. Aron, or did you? Did you have Carolina connections?
Ms. Aron. No.
Mr. Coble. We will forgive you.
Ms. Aron. A New Yorker.
Mr. Coble. We will hold you harmless for that.
Ms. Aron. Through and through.
Mr. Coble. We will hold you harmless for that.
I was going to ask the Ambassador one question, Mr.
Chairman, if I can find it.
Ambassador, I noticed that you relied heavily on quotes
from now-Senior Judge Harry Edwards. What makes his perspective
so persuasive to you?
Ambassador Gray. For two reasons. First, he did, as I
indicated in my testimony, rescue the D.C. Circuit from really
a fractious period, and launched it on what has been a two- or
three-decade-long period of stability and predictability, and
this is something which every judge finds to be an incredibly
important component of his or her work there, to provide
predictability for the regulated community in this country.
That is why I quote him so extensively, because he has thought
about it and seen it and overseen the shift from, as
Frankfurter called it, ``the collectivity of fighting cats'' to
one of, if not the most, collegial court in the country. It
also happens to be that he was a Democratic nominee, so this is
not a partisan pitch on my behalf.
Mr. Coble. Well, I thank you both, all three of you, for
being here.
Ms. Aron, I didn't give you a chance to respond to the New
York Times. I assume that you were correctly quoted.
Ms. Aron. I was correctly quoted, and I stand by the quote.
But I think that certainly the D.C. Circuit has, in a number of
instances, gone out of its way to invalidate many of the
President's critically important initiatives, and that is a
result of Republican court-packing of the D.C. Circuit.
But put that aside because we are not talking about court
packing and ideology at this hearing. As I understand it, this
is a hearing on filling vacancies on the court, and ideology--
there is nothing in the Constitution regarding ideology and
filling vacancies. Put simply, this President has an
obligation, an obligation that has been honored and revered
over time by every other president, and he is simply carrying
out his constitutional duty to fill existing vacancies.
In fact, if you look at the three candidates who have been
put forth for the D.C. Circuit, you will find three supremely
qualified candidates. I would never expect that any of them
would upset the current collegial climate on the court. In
fact, all three are well known. One is currently a district
court judge who was unanimously confirmed to the district court
just a few years ago. So I hardly think----
Mr. Coble. My time has run out, so if you will wrap up.
Ms. Aron. Okay. I think I am done.
Mr. Coble. I assume that you don't agree with my irregular
stand from your response, and we can respectfully disagree on
that. The people to whom you referred--and I will be through in
just a minute, Mr. Chairman--may well be qualified, but they
are not needed. The tasks are being performed without their
presence there.
So with that, I will yield back, Mr. Chairman.
Mr. Franks. I thank the gentleman.
The Chair will now recognize himself for 5 minutes for
questions.
Ambassador Gray, if it is all right, I will begin with you.
It appears some of our friends on the left have concluded that
the court is irretrievably biased against their perspective and
that the only remedy, even though the court seems to be evenly
split, as it appears, but their only remedy is to stack the
deck against those who challenge the expansion of the
administrative state.
What evidence do you have that they have misdiagnosed the
problem and are overreaching in their attempts to reverse
outcomes with which they disagree?
Ambassador Gray. I don't see any evidence of bias in favor
or against the current Administration. What the data show very
clearly are that the reversal rates work the other way. That is
to say the current Administration has been reversed less than
the predecessor Administration of George Bush, and I would take
just a minute, if I may, to use as an example one of the cases
that Senator Schumer complained about when he said we are going
to fill up the D.C. Circuit one way or the other.
He was talking about--this is a technical case. Some of you
may be familiar with it, the cross-state pollution rule which
the D.C. Circuit rejected. Now, the interesting thing about
that is that is the follow-on case to an earlier rule, the same
rule basically, that the D.C. Circuit threw out after it had
been issued by President Bush.
So the origin of this case that Senator Schumer is
complaining about is an anti-Bush case, not an anti-Obama case.
I can't really think of an example that more disproves Senator
Schumer's case better than that one instance.
Mr. Franks. Thank you, sir.
Ms. Aron, I would like to follow up with Ambassador Gray's
comments. He cited Federal court statistics that show that the
court reversed administrative agencies in only 16.7 percent of
the cases it decided during the 2009-2012 reporting period, and
that compares with 18.8 percent of the time during the Bush
years. It sounds as if the numbers don't back up the assertions
that the judges on the court, including the ``Republican-
appointed majority,'' are biased against the Administration.
Besides anecdotes, what is your evidence to the contrary?
Ms. Aron. Well, I think what we ought to consider and what
has been considered by the Judicial Conference of the United
States, led by Chief Justice John Roberts, is pending cases per
active judge, not filings, not completions. It is interesting.
In 2012, the D.C. Circuit was only operating with seven out of
twelve judges. How could you look at completions when the
number of judges was down?
I would say anybody that has looked at this issue,
Republican and Democrat alike, has concluded that pending cases
per active judge is the standard. And again, as I have said,
President George W. Bush, when he filled the ninth, tenth, and
eleventh seats, the active caseload per judge was lower than it
is today. This is not an issue of caseloads.
Mr. Franks. Let me--sorry about that. Let me go ahead and
speak to that and ask you about this. Ms. Severino noted that
the court has had to cancel sittings in recent years due to the
lack of cases scheduled for oral argument. Indeed, in 1985, the
court adopted a case management plan that required judges to
sit in 4-day sessions and hear oral arguments in 112 cases per
year.
For years now they have sat in 3-day sessions only and had
been scheduled to hear oral arguments in 72 cases a year.
So how does that square with these facts--these facts, how
do they square with the claims on your part that the court's
workload has significantly increased in recent years? And also,
how do you reconcile this reduction in workload with your
support for 138 percent increase in active judges?
Ms. Aron. Well, I cannot base my answer on anecdotal
information.
Mr. Franks. Well, these are not anecdotal. This is not
anecdotal information at all, Ms. Aron.
Ms. Aron. I can only base it on active pending caseload.
Mr. Franks. These are the statistics. This is not
anecdotal. I am asking you, other than anecdotal information,
what information do you have, what evidence do you have that
the court has somehow become more activist against this
president than the previous president? What evidence do you
have that their workload has increased that would require 138
percent increase in judges?
Ms. Aron. Okay. So, those are two separate questions.
Mr. Franks. They are.
Ms. Aron. All right.
Mr. Franks. You have made assertions in both areas. If you
would just give me evidence in either one of them, I would be
happy.
Ms. Aron. Okay. Well, let's deal with the ideological part
first.
Mr. Franks. All right.
Ms. Aron. And then we can deal--I think I just responded--
with the caseload.
If you look at the results in cases coming out of the D.C.
Circuit, whether it is environmental protections, the D.C.
Circuit struck down an EPA rule that was intended to control
air pollution across state lines. That rule, had it gone into
effect, would have prevented from 13,000 to 24,000 premature
deaths.
Worker rights. This court of appeals invalidated three of
President Obama's nominees to the National Labor Relations Act.
This court invalidated an FDA cigarette warning label a few
years ago.
This court struck down a regulation that was promulgated
pursuant to Dodd-Frank that would have made it easier for
shareholders to propose their own nominees to corporate boards
of directors.
Mr. Franks. Thank you, Ms. Aron.
Ms. Aron. But again, as I have said, as I have said, my
views and what this court has done has relatively little
relevance to the issue about which we are here today, which is
filling existing vacancies, and our position is that it is
critically important. In fact, it is the constitutional task
for the President and the Senate to confirm judges to the D.C.
Circuit.
Mr. Franks. Thank you, Ms. Aron.
And I will now recognize Mr. Bachus for 5 minutes.
Mr. Bachus. Thank you.
I think in 2006--and I don't know if you have a copy, Ms.
Aron, of a letter that Senator Joe Biden and Patrick Leahy and
Chuck Schumer and Ted Kennedy and four other Democratic, or
five other Democratic senators sent to then-chairman of the
Judiciary Committee, Arlen Specter. They urged them to tend to
actual judicial emergencies before moving forward with nominees
to the D.C. Circuit.
Do you think they were right to do that?
Ms. Aron. Well, I am reading this letter, and I would say
that the----
Mr. Bachus. Look at the next-to-the-last paragraph, ``we
should turn to nominees first and emergency vacancies should
clearly take priority over a possibly superficial one, and that
is the need to fill an eleventh seat on the D.C. Circuit.''
Ms. Aron. I am looking at the paragraph before that, and I
have----
Mr. Bachus. But tell me about that one, and then we will go
to the one before that.
Ms. Aron. Well, I certainly can see the reason that
Senators Schumer, Leahy and others wanted to----
Mr. Bachus. Joe Biden, Vice President Joe Biden.
Ms. Aron [continuing]. Wanted to maintain some process.
Mr. Bachus. No, I am not talking about that paragraph.
Ms. Aron. It looks to me like what was happening at that
point, in 2006, is that----
Mr. Bachus. Well, they said their caseload wasn't
sufficient. But look at that next-to-the-last paragraph. Would
you do that? I don't know if you can read that, but they said
that emergency vacancies should clearly take priority over what
they described as superficial----
Ms. Aron. Sir, I think that last paragraph has to be read
in context, not alone. And it looks to me----
Mr. Bachus. They were asking him not to appoint someone to
the D.C. Circuit because----
Ms. Aron. No. What they were doing in this letter, as I
read this letter, is they were saying do not rush this
nomination through before--and there is a very important point
made in this letter--before the American Bar Association has an
opportunity to evaluate this nominee. They shouldn't rush this
nominee through.
Mr. Bachus. But they also said emergency--they clearly said
emergency appointments should be made first.
Ms. Aron. Well, I see that. But I am just saying there is a
larger context here. The information wasn't in on Mr. Keisler.
No one could really vote, and we wouldn't want to vote on
nominees to the Circuit Court before we know what their records
are. That is what this letter is saying.
Mr. Bachus. No, it is not. The next-to-the-last paragraph
says they ought to give priority to the emergency vacancies.
That is exactly--I am going to read it. ``Emergency vacancies
should clearly take priority, and we have 34 of those.'' That
is what it says.
Let me ask you this. When school children come up here, we
talk to them about the Constitution. We show them the three
branches of government. We talk about checks and balances. Do
you think that a consideration for who sits on a circuit court
or an appeals court ought to be whether they rule in favor of
the executive branch? Do you think that ought to be even part
of the equation?
Ms. Aron. No. I think we should select nominees based on
qualifications of intellect, analytical skills, judicial
temperament, honesty.
Mr. Bachus. But you said in the New York Times, you talked
about they keep ruling against the Administration, you need to
appoint someone that will----
Ms. Aron. Well, it is my belief that we must--and I think
the Administration has done an exemplary job of selecting----
Mr. Bachus. Listen, I realize that you totally support this
Administration. I mean, for the record, I totally acknowledge
that.
What about Mr. Gray's testimony and the numbers? Is there
anything wrong with these numbers, that this court turned down
almost 19 percent, 18.8 percent of the Bush--reversed the Bush
Administration administrative agency rules, and only 16.7
percent during the Obama Administration? So this court has not
been more adverse, or is there something wrong with those
numbers?
Ms. Aron. I don't believe there is something wrong with
those numbers. I just don't think those are the relevant
numbers to consider at this hearing, and they certainly aren't
the numbers that have been considered by the Judicial
Conference.
Mr. Bachus. What about the fact that the court has gone
from 4 days a week to 3 days a week in their sessions, and they
have had to cancel hearings? Were you aware of that?
Ms. Aron. I do not actually believe, one, that that is
accurate; and two, I think----
Mr. Bachus. Ms. Severino, it was your testimony that they
had gone from 4-day sessions and heard oral arguments on 112
cases, and for years now they have had 3-day sessions only and
been scheduled to hear oral arguments in 72 cases a year. Is
that correct? She said she didn't believe it.
Ms. Severino. As far as I am aware, that is correct. I
believe that was something Mr. Franks was quoting from a
different source. It was from the Administrative Office or the
Clerk of the Court.
Mr. Franks. We also have statistics here that show that in
2006, the average per-judge cases was 90. That is when the
letter was written. And today it is 81. So there is a marked
decrease rather than an increase.
Mr. Bachus. But, I mean, she said that she didn't think
those figures were accurate. Was your testimony inaccurate?
Ms. Severino. I think the statistics are quite clear on all
of these issues. It is just a matter of whether you want to
pick and choose them to find the one statistic that shows--for
example, she has picked the pending cases and said at the time
of these earlier nominations the court was less busy than it is
now. But actually, if you look at any other statistic you will
see that despite the decrease in number of active judges, from
10 judges to 8 judges, now we have almost equivalent striking
the way the court creates law has remained the same, and in
some cases gone down. It depends on what statistic you look at,
cases filed per active judge, cases disposed of per active
judge, cases disposed of on the merits, cases disposed of after
oral argument, cases scheduled for oral argument per judge. All
of these show either the cases have remained almost identical
or have actually gone down in several of these.
So you can point to this one, pending cases, but I think
there are a lot of good reasons that the other issues make more
sense. Those are the statistics I would rely on.
Mr. Bachus. Ms. Aron, in the New York Times you made the
point pretty vocally that this court has frustrated the
President's agenda. But if they believe that those rulings
violate the law, isn't their job to be a check on the executive
branch?
Ms. Aron. Absolutely, absolutely.
Mr. Bachus. Thank you.
Mr. Franks. I thank the gentleman.
And I would now recognize Mr. Holding for 5 minutes.
Mr. Holding. Thank you, Mr. Chairman.
Ms. Severino, I have read with interest the Virginia Law
Review article regarding the D.C. Circuit written by John
Roberts, and several advocates for packing more judges into the
D.C. Circuit have cited this lecture or article written by the
Chief Justice in their support of their effort.
What do you think is a fair reading of the article, and
what is the main take-away from it?
Ms. Severino. I think it is actually ironic that they cite
this article because, if anything, the main take-away point
is--it is really a historical piece, first of all. It is not
talking about the caseload of the courts. But his main take-
away point is the unique role of the D.C. Circuit in reviewing
decisions of the national government, and he actually points to
the reason that that makes it particularly vulnerable.
He relates a story from the 19th century, from President
Lincoln actually, who eliminated the court entirely because he
wasn't happy with its rulings. And while we are not hearing
calls today to have the court completely eliminated, we are
hearing a very similar type of argument pointing, as Ms. Aron
did, to the results of the cases, not actually to the legal
standing. Maybe someone who is a fan of a particular EPA
regulation would like to see it upheld, but that is not the
court's question that they are considering.
They need to consider is this regulation within the
authority of the statute. Similarly with the NLRB appointments.
It is not would we like more commissioners on the NLRB, are we
pro or against workers' rights. That wasn't any issue in the
case. The case was how is the recess appointments power to be
interpreted.
These are the issues that the judges should be looking at.
They shouldn't be--Republican or Democrat nominees should not
be looking at whether it is a policy result they should want.
They should be looking simply to keep the court within its
constitutional and legal boundaries. That is their unique role,
as the Chief Justice pointed out in this article, and it does
make them vulnerable to political attacks, but I am hoping that
the D.C. Circuit will be able to maintain its role because we
certainly need that check to maintain our checks and balances.
Mr. Holding. Well, it is a fascinating article.
I want to turn away from the D.C. Circuit for a moment. My
frame of reference is the Eastern District of North Carolina,
where I used to practice, which has been ranked as the number-
one most efficient district court in the nation. It dispenses
with more cases in a more efficient manner than any other
court, and I think it far out-ranks number two.
One of the ways that the chief judge in the Eastern
District has been able to clear backlogs and keep up with a
robust docket is having visiting judges come in from around the
nation, either senior judges or judges from other districts
that have a very light caseload.
I wonder if there has ever been a study done that looked
across all districts and saw where there was excess judicial
capacity in other districts and said that, well, we can apply
that excess judicial capacity to districts that are over-worked
or have higher caseloads, if there has ever been a concerted
effort to do that, to any of you all's knowledge.
Ambassador Gray?
Ambassador Gray. I am not aware of any study that has been
comprehensive about this, but the practice of inviting in
judges to alleviate shortages is not unheard of. I mean, it
does happen, and senior judges do move around where they are
most needed, including Supreme Court retirees.
Ms. Aron. I would just say I think the Judicial Conference
takes into account numbers of judges and pending cases being
argued. I just want to mention, though, that the Eastern
District of North Carolina has the longest standing district
court vacancy in the country.
Mr. Holding. And I would point out that being the most
efficient district in the country may indicate that they have
enough judges.
But, Ms. Severino, you were going to add a comment.
Ms. Severino. Certainly. The Administrative Office of the
Courts actually does keep statistics on this, and it actually
lines up in some ways with the workloads of the circuits. You
will see the Eleventh Circuit has--I don't have the numbers
right in front of me, but it has a very large number of
visiting judges that come in. That is clearly the busiest
circuit right now by almost any statistic that you look at,
sometimes five times more busy than the D.C. Circuit.
The D.C. Circuit, however, at least in the past year, and I
am not aware of any time in recent history that it has had any
visiting judges, simply again because there is not the need for
it at all. There is barely enough work to go around, as the
judges have mentioned. So that is another good indicator of the
need for judges on a court.
Mr. Holding. Thank you.
Mr. Chairman, I yield back.
Mr. Gowdy [presiding]. I thank the gentleman, the former
United States Attorney from North Carolina.
The Chair would now recognize a former United States
Attorney, Mr. Marino.
Mr. Marino. Thank you, Chairman, and I apologize. I had
some people that were waiting in the hall, and I didn't want
them standing out there that long. I am sure they have other
important things to do.
Ms. Aron, I have some questions, and I hear you making your
argument based on the Constitution. Am I correct in that? You
are looking at this from a constitutional point of view.
Ms. Aron. The Constitution, and I would say standard
operating procedures. This is what every president does, is
fill vacancies.
Mr. Marino. Okay, but there has still been a lot of
standard operating procedures here in D.C. that have taken
place over the last 50 years in both parties that have put us
$17 trillion in debt. I clerked for a Federal judge, I was a
prosecutor for 18 years, and I worked in a factory until I was
30 years old, and I know what it is like to stretch a paycheck
from week to week and how my wife stretches a buck still today,
particularly with kids in college and the whole nine yards.
Let's set the constitutional argument aside for a moment. I
think the President has a responsibility, every president. And,
by the way, every president for the last, I think it is the
last 40, maybe even 50 years, they have contributed to the
debt. Every single president has added to the debt. It is just
getting in bigger numbers over the last 50 years. So enough
blame to go around.
But I think the President has a responsibility to the
taxpayers as well. He or in the future she is the CEO and has
to watch the bottom line.
Now, there was a statement made, and I do agree with this
because I read it somewhere before, that judges annually cost
about $1 million with salaries, benefits, their staff, the
whole nine yards. So did I miss or did you not bring up in your
opening statement when you were talking about so many cases per
judge? I didn't hear you bringing up senior judges. So correct
me if I am wrong. You based that division of cases on what we
refer to as sitting or full-time judges, correct?
Ms. Aron. Correct.
Mr. Marino. Okay. Now, where I came from, the Middle
District of Pennsylvania, we have six sitting judges or ``full-
time'' judges, but we also have seven senior judges that are
still costing the taxpayers $1 million a year, okay? So I think
it was--I think you should have not left out that those senior
judges, at least what I am familiar with in the Middle District
of Pennsylvania, are carrying near or full caseloads. And I
know, because I have tried cases as a U.S. Attorney myself in
front of not only the sitting judges but the senior judges.
So there is some misconception there. I think it is skewed,
and if you are going to divide the cases, you need to divide
them with the sitting full-time judges and the retired judges.
Just so the public knows, first of all, the circuit courts
don't hear trials. They hear appellate cases. They hear when
someone doesn't like the decision, whether it is the plaintiff
or it is the defendant, or whether it is the government, they
hear legal arguments as to whether a person should get a new
trial or a new sentencing. So that is very different from
hearing trials, hearing cases, going to trial, taking guilty
pleas, sentencing, the whole nine yards. District courts are
very busy.
So if there is anywhere, if there is anywhere that we
should be looking to increase Federal judges, it should be in
the district court area because of the numbers of cases. When I
was a U.S. Attorney, and I still communicate with my
colleagues, the same number of judges are there, six sitting
full-time and seven seniors. When one of those seniors dies,
that increases the caseload. Thank goodness, at least in the
Middle District of Pennsylvania, we have seven great senior
judges that are there.
So that is a misconception, and I am disappointed that you
didn't factor that in.
Ms. Aron. May I respond?
Mr. Marino. Please.
Ms. Aron. Okay. First of all, we are looking at active
Federal judges. You know from your time as a clerk and U.S.
Attorney that a senior judge can leave the bench at any time he
or she wants. They don't serve----
Mr. Marino. Okay. Let me----
Ms. Aron. They are not there for life.
Mr. Marino. Let me stop you right there, though. But they
don't. They don't.
Ms. Aron. But they can.
Mr. Marino. But they are still there. They are still there
collecting full pay and full benefits.
Ms. Aron. But they can opt out of the very complex
regulatory cases if they----
Mr. Marino. They can. Okay. Why don't we wait until that
point? Why don't we wait until that point when they opt out and
say I don't want to do this any longer, and then assess the
situation?
Ms. Aron. Okay, here is the answer why.
Mr. Marino. Okay.
Ms. Aron. Because just like the Administration, the
Judicial Conference has to plan, has to take into account what
the caseload will likely be in the future, and in taking into
account caseloads and in planning ahead, it is very difficult,
almost impossible, to know what a senior judge is going to do
or not do.
Mr. Gowdy. The gentleman's time has expired. I am going to
let the gentleman get an answer to his final question. I would
just note for Judge Poe and Mr. Collins, votes are probably
going to be called in the next 15 or 20 minutes.
Mr. Marino. You brought up just a moment ago what if you
can't make any statements based on what may happen. Well, the
caseloads have actually gone down with the same number of
judges, and I think the figures that you were citing are very
misleading.
And with that, I yield back.
Mr. Gowdy. I thank the gentleman.
The Chair would now recognize a former state court judge
from Texas, Judge Poe.
Mr. Poe. I thank the Chairman.
Thank you all for being here.
Ms. Aron, if I understand your testimony, the bottom line
is they need more judges on the D.C. Circuit. Is that right?
Ms. Aron. My testimony is that the President has an
obligation to fill existing vacancies, and certainly it is in
the interest of the public that our courts be fully staffed.
Mr. Poe. So is that a yes?
Ms. Aron. Did you say you were in Texas? We have eight
vacancies now on the district courts in Texas.
Mr. Poe. Just answer my question. Do you believe that the
issue is they need more judges on the D.C. Circuit?
Ms. Aron. Yes.
Mr. Poe. That is either a yes or it is a no.
Ms. Aron. Yes, I think that court ought to be fully
staffed.
Mr. Poe. All right. Don't you think a fairer thing to do,
to any Administration, be it Republican or Democrat or
whatever, that if they need more judges on a circuit court,
that the law take effect at the next term of whoever president
it is, to set aside any political philosophy? If it is really
the need for judges, not need for progressive judges,
conservative judges, if it is the need for judges, would not
the fairer thing to do to be that the law would take effect for
new judges at the next term of whoever is president? Yes or no?
Ms. Aron. But that is not what the Constitution says or
requires in Article 2, Section 2.
Mr. Poe. That is not my question.
Ms. Aron. So the answer is no.
Mr. Poe. That is not my question.
Ms. Aron. The answer is no.
Mr. Poe. So it is no. Don't you believe, or do you believe
that judicial appointments in Federal court are political?
Ms. Aron. Some are, some aren't. Sure. I mean, let's look
at--I won't go there.
Mr. Poe. But you have your choice, you have your choice.
Ms. Aron. Of course some are, some aren't. But that is not
the point here. The point----
Mr. Poe. Well, it is the point here. You want a political
appointment to serve a certain philosophy of the current
president. That has been the history of other presidents as
well.
Ms. Aron. I would----
Mr. Poe. Excuse me.
Ms. Aron. I am sorry. Excuse me.
Mr. Poe. It would be fairer that if you need more judges on
a particular court, that the next term would allow that, not
the current term of the sitting president, to avoid the
appearance of political partisanship. That is my point.
Ms. Aron. So my response would be I think you would be
surprised.
Mr. Poe. I would be surprised.
Ms. Aron. If you looked at the judges that have been
appointed by President Obama, 86 percent of those judges come
from corporate backgrounds, come up from state courts, or come
from U.S. Attorney offices. In fact, the vast majority of his
appointments have been exemplary, have been individuals that
enjoy respect from both sides of the political aisle.
Mr. Poe. But that is not the issue we are talking about. We
are talking about more judges on the D.C. Court. We are not
talking about political appointments by the President of the
United States in general. We are talking about the D.C. Court
and stacking a particular court to meet a certain philosophy.
That is really the issue that we are talking about today.
Federal judges, in my opinion, are political appointments,
political appointments. In other states, or in states, like
Texas, we have political elections to determine who judges are.
It works for us. We are accountable, of course, to the public.
We are elected, but it is still political. Political
appointments, to get appointed through the political process to
be a Federal judge, it is political. I have talked to a lot of
Federal judges. It is very political. That is just the system
that we operate under.
As far as needing more judges, I have no sympathy for the
workload of the D.C. Circuit Court. I was a trial judge. My
opinion is nobody should serve on an appellate bench unless
they have been a trial judge, or at least a trial lawyer. That
is a different issue.
But I was a trial judge, and we tried a lot of cases.
Appellate courts seem to be the same in my opinion. They want
more help, but do they really need it? Maybe not. They have the
luxury of hearing a case and then spending time--weeks,
months--to make the decision. Trial court judges don't have
that luxury. We hear a case, sometimes capital murder cases
that I heard, you have to rule right then. You have to make a
decision, and then those cases are reviewed.
So I don't buy the argument that we need more Federal
judges on the D.C. Circuit no matter who the president is.
With that, I yield back, Mr. Chairman.
Mr. Gowdy. I thank Judge Poe.
The Chair would now recognize the gentleman from Georgia,
Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Well, let's just finish up here with the bang that we
started with. I am glad that you are here. I am glad the
witnesses are here. It is really interesting to see because in
just a moment we are going to get to what I call in North
Georgia, and maybe around the world, we are going to call a
duck a duck. Okay? We have been dancing it the whole time. So
we are going to talk about this.
What is amazing right now for me is that there seems to be
a theme this week, and I am going to tie it together. There
seems to be a theme that has developed today and this week
really with an Administration and a president who seems to not
know what he does and what he doesn't know. I mean, we don't
seem to have anyone from the Administration here to shed light
on the approach to the courts, and that is probably okay
because just like they don't know if they were spying on our
allies or building a website that worked, or probably wouldn't
know if they were stacking the courts or not, or at least put
out a press release to say, you know, we are not sure about
that, I didn't know about it.
You know, it is a long way fall for a Democrat president
who is highly respected who said the buck stops here, to now
knowing, well, I don't know anything, I didn't know about that.
So let's not worry about what we don't know, because that seems
to be the theme from the Administration. Let's do what we do
know.
We know that there are currently eight judges on the D.C.
Circuit evenly split between Republicans and Democrats, and
that is a problem. We know that there are three vacancies. We
know that the D.C. Circuit Court averaged 41 fewer signed
decisions compared to the national average. We know that the
D.C. Circuit caseload is the lowest in the nation, less than
half the national average. We know that the President and
Members of the Senate and, frankly, you, Ms. Aron, have a
vested interest, or at least an interest in ensuring that the
court has a central role in litigation affecting national U.S.
policy and laws, is filled with persons ascribing to his
political views.
The reason I know that today is because I sat here and
listened. I have listened to you, and also read from your
article in which you attributed to and said yes, that you agree
that you stand by your quote that balance must be restored on
that court, the empty seats must be filled.
You have stated today that you don't like some of the
decisions, and it was in a question-and-answer session where
you said we have got to bring back balance because of the
decisions that have overturned this Administration that come
from a Republican court-packing scheme. And this was your own
words from today.
In looking at this right here, you also made an interesting
question. I want to deal with two things. It is not necessarily
the political philosophy which I believe we have, and let's
call the duck a duck. There is a political philosophy here that
is being played out. But we also have the allocation of
resources.
Ms. Aron, you have been eloquent in your position, and I
respect that--we just have a difference of view here--in saying
that it is the constitutional responsibility of the President
to fill these vacancies. Well, there are eight emergency slots,
and five have not been filled. So would you be on record right
now in saying that the President is negligent in his
responsibilities?
Ms. Aron. No, not at all.
Mr. Collins. Why not? You said he has a responsibility,
that he has an overwhelming responsibility. You have said it on
multiple occasions. So if he has a responsibility to the
Constitution, and he has not even named nominees to eight very
emergency slots, but yet he has named three to a political
slot, wouldn't that be negligence, or asleep at the wheel?
Ms. Aron. First of all, I don't think you can distinguish
political slots from other judicial slots. But I would say----
Mr. Collins. Well, stop right there. I apologize. I
apologize, because you just said something very interesting,
distinguishing political slots from non-political slots. In the
conversation with the gentleman from Texas, you just basically
said, well, some are and some are not.
Let's describe that. Are judges political appointments or
not?
Ms. Aron. They are, but let's take your state of Georgia,
for instance.
Mr. Collins. Okay.
Ms. Aron. You have had a number of vacancies in the state
for years, and----
Mr. Collins. Then let's focus on Georgia and not the D.C.
Circuit where you just don't like the opinions.
Ms. Aron. We should be focusing on all of them, but the
topic for today's hearing is the D.C. Circuit.
Mr. Collins. So I go back to that, reallocation of assets.
If you don't like the result, you want to get your political
opinion here. That is the part that--I guess we danced around
it long enough. I am bringing it out. You may or may not like
it, and that is fine. But it is a political issue. You stated
it on several occasions. But this is not about filling a
caseload that needs filling.
I can agree with you in Georgia. I can agree with you in
other places. My friend from North Carolina points out the most
efficient court, and they are doing it with a unique
perspective. But let's at least get to the point here where I
believe that with the other things going on in our country,
with the other things with our court system--and I am an
attorney as well, and access to justice is an issue--then let's
at least be honest with it.
Instead of saying, well, it may or may not be, the
President appointed these folks because he didn't like what was
coming out. It doesn't need to be pushed forward at this point.
This is not the court to deal with. Let's deal with the five he
has not appointed, because I do believe it is either asleep at
the wheel or negligent. Which is it?
Ms. Aron. Well, it is neither, sir.
Mr. Collins. How can it not be?
Ms. Aron. It is neither. I think you have to look at the
critical importance the D.C. Circuit holds in our judiciary. It
is the crown jewel of the system. It hears the most complex
cases. It has judges and has always had judges who have
superior analytical skills. It is the court that provides the
farm team for the Supreme Court. Four justices on the Supreme
Court came from the D.C. Circuit.
And I would say to you, talking about politics, that the
reason that Senator Grassley and some of his colleagues do not
want to fill those seats is solely not due to caseload, because
even John Roberts and Timothy Tymkovich disagree with him, and
those aren't guys you want on the other side. You want them on
your side. They don't want them on the D.C. Circuit because
they understand the critical importance the D.C. Circuit has on
all of our lives.
Mr. Collins. And you just made my case. The President wants
the crown jewel.
Mr. Gowdy. The gentleman's time has expired.
Ms. Aron. No, he wants to fill vacancies, as every other
president has.
Mr. Gowdy. The gentleman's time has expired.
The Chair would now recognize himself as the last
questioner.
I was heartened to hear my friend from Georgia, not Mr.
Collins but Mr. Johnson, long for the old days where politics
and agenda didn't involve themselves with D.C. Court of Appeals
appointments. It made me wish that Mr. Johnson had been around
when Miguel Estrada was nominated for the D.C. Court of
Appeals, because I think the analysis was a little different
then, and it certainly is a little different in South Carolina.
I know that Bill Nettles is not a Federal judge. He is the
United States Attorney, so that would be a political
appointment, with the word ``political'' modifying the
appointer and not the appointee. Bill Nettles is an Obama
appointee, and he is politically to the left of Chairman Mao.
He has done a phenomenal job in South Carolina. I would not
hesitate to appear before a Senate panel and recommend that he
be re-upped for another 4 years.
Bill Traxler is the chief judge of the Fourth Circuit Court
of Appeals. Do you know what president put him on the Federal
bench?
Ms. Aron. President Bush.
Mr. Gowdy. Do you know who elevated him to the Fourth
Circuit?
Ms. Aron. President Clinton.
Mr. Gowdy. How about Henry Floyd? Who put him on the
Federal bench? Another excellent, fair trial judge that I tried
many cases in front of. He was put on the district court by
President Bush and was elevated to the Fourth Circuit Court of
Appeals by President Obama because I spoke at his investiture.
Ms. Aron. I know. Democratic presidents often do that.
Mr. Gowdy. So I am wondering why politics has to infect and
invade every single judicial conversation that we have.
Ms. Aron, I have to ask you because you said it, you said
that the majority on the D.C. Court of Appeals is thwarting the
President's agenda. Who? Which ones? Name them. Who? When you
said that, what judges, by name, were you referring to?
Ms. Aron. I would like to talk about perhaps----
Mr. Gowdy. That is great, and when you are a Member of
Congress, you can ask the questions. But for now, I get to ask
the questions. I want to know who specifically you were making
reference to when you said the majority is trying to thwart the
President's agenda. Which judges on the D.C. Court of Appeals
do you think are motivated by thwarting this president's
political agenda?
Ms. Aron. I am not sure it is necessary to get into this
topic, but if you want to----
Mr. Gowdy. It is necessary to me.
Ms. Aron [continuing]. Then I will be happy to tell you.
Mr. Gowdy. It is necessary to me, Ms. Aron, because you
said three or four judges. You say we need more judges because
the ones that are there now are insufficiently advancing the
President's agenda. I want to know which ones.
Ms. Aron. Okay.
Mr. Gowdy. Who?
Ms. Aron. I will give you two examples.
Mr. Gowdy. Give me names.
Ms. Aron. Okay, I am happy to do that.
Mr. Gowdy. Give them.
Ms. Aron. Brett Kavanaugh.
Mr. Gowdy. Okay.
Ms. Aron. Why was Brett Kavanaugh selected for the D.C.
Circuit? One, he authored the Starr Report. Two, he was a
Whitewater prosecutor.
Mr. Gowdy. Does that mean he is not qualified?
Ms. Aron. No.
Mr. Gowdy. Does that mean he can't do a good job?
Ms. Aron. No.
Mr. Gowdy. John Roberts was the deciding vote in Sebelius
v. NFIB.
Ms. Aron. No.
Mr. Gowdy. I bet that surprised you.
Ms. Aron. But I would say that Brett Kavanaugh was
selected--look, qualified lawyers in Washington, D.C. are a
dime a dozen in our biggest law firms. We know. Let's talk--
let's stop the gamesmanship. Brett Kavanaugh was selected
because President George W. Bush knew, if confirmed, he would
pretty much carry out President Bush's agenda, and he has.
Let's talk about----
Mr. Gowdy. Let me ask you this, Ms. Aron. No, no, no, no,
no. I am not going to let you do that. Who appointed Brennan to
the Supreme Court?
Ms. Aron. I think Eisenhower.
Mr. Gowdy. Do you think he was surprised at the way that
turned out? Who appointed Souter to the Supreme Court?
Ms. Aron. I remember that, George Bush, Sr.
Mr. Gowdy. Do you think he was surprised at the way that
turned out?
Ms. Aron. He probably was.
Mr. Gowdy. Who put John Paul Stevens on the U.S. Supreme
Court?
Ms. Aron. I think that was Richard Nixon.
Mr. Gowdy. Do you think he was surprised at the way that
turned out?
Ms. Aron. Listen----
Mr. Gowdy. So you can't go based on who the president is,
what their judicial philosophy is going to be. That is why we
give them lifetime tenure.
Ms. Severino, let me ask you this. It has been a long time
since I read the advance sheets. How many different courts of
appeals have dealt with the recess appointment issue?
Ms. Severino. The major case was the D.C. Circuit case, the
NLRB case.
Mr. Gowdy. Right. But there have been two other courts of
appeals, including the Fourth Circuit, that have also gone into
the issue of whether or not we are going to take Harry Reid's
definition of recess appointments when there is a Republican
president, or whether we are going to take Harry Reid's
definition of recess appointments when there is a Democrat
president. All three circuits ruled the exact same way.
Ms. Severino. Right, and that points to the fact that
ideally judges, regardless of the nominating party, the
nominating president, ought to be neutral. I think just going
to the example of Brett Kavanaugh, one example is where he was
the lone judge to say that he was upholding Obamacare in the
recent Commerce Clause challenges, and I think he probably got
some flak from people in his party for that, but I think it was
a principled decision if he did it based not on his policy
interests but on his judicial judgment.
Mr. Gowdy. And he wound up being wrong on the Commerce
Clause, but he should have done it under the tax and spend
clause.
Ms. Severino. At least he did it for the right reasons, I
think, his judgment rather than his policy preferences.
Mr. Gowdy. I had lots and lots of judges rule differently
from how I wanted them to rule. I never once questioned the
political motivations of a judge that I appeared in front of.
That is why you give them lifetime tenure.
They have sounded the bell, Mr. U.S. Attorney, for us to go
vote. I do want to thank all three of our witnesses for your
loaning us your expertise and your collegiality with one
another and with the Members of this Committee.
I am informed that the record will remain open for 5
legislative days.
And with that, thank you again, and we are adjourned.
[Whereupon, at 4:31 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
The Committee will come to order. I'll recognize myself and then
the Ranking Member for opening statements.
On June 4, in a highly unusual move, the President nominated three
individuals to a single circuit court--the United States Court of
Appeals for the District of Columbia.
These three nominations, together with the recent Senate
confirmation of a fourth selected by the President, are intended to
pack the D.C. Circuit to its absolute capacity of 11 authorized
judgeships.
Given that:
1) each judgeship is estimated by the Congressional Budget
Office (CBO) to cost taxpayers $1 million each and every year;
2) there are eight vacancies designated as ``emergencies'' on
our nation's circuit courts and the President has not submitted
a nomination for five of these positions;
3) the Senate Judiciary Committee has not conducted a hearing
on any of the three Circuit ``emergency'' vacancies the
President did submit a nominee for;
4) the D.C. Circuit has never in its history had a single
emergency vacancy;
5) the court's workload has steadily and precipitously
declined over many years; and
6) the court has a generous complement of six active
``senior'' judges who together contribute substantially to the
work of the court;
it is appropriate for the public and this Committee to ask whether
filling these judgeships is the highest and best use of limited
taxpayer dollars and to also consider alternative explanations as to
why the President and his allies have decided at this moment to pursue
such an aggressive and virtually unprecedented strategy with respect to
these particular judicial vacancies.
When the President announced these three nominations, he justified
his action by noting that these vacancies existed on the D.C. Circuit
and asserting . . . ``If we want to ensure a fair and functioning
judiciary, our courts cannot be short-staffed.''
So our first inquiry is to ask what is the evidence the D.C.
Circuit is ``short-staffed'' and further, that the court is not ``fair
and functioning'' and therefore needs to be dramatically enlarged.
At the outset, I want to note I consider it an affront to the
judges of the D.C. Circuit to imply the court has operated in an
``unfair'' manner. While it is understandable that litigants, including
the Administration, who fail to prove their case, will be disappointed
in particular outcomes, there is no cause to suggest, by implication or
otherwise, that the court has conducted itself in anything other than
an honorable fashion.
Indeed, as we will soon hear, the D.C. Circuit has a well-earned
reputation as a ``national court'' that is ``the second most important
. . . in the country'' in terms of its prestige and impact upon a wide
array of significant public interests.
We'll soon hear from our distinguished panel of witnesses but
before recognizing them, I want to offer several observations.
The starting point for answering our initial question is to look at
data from the Administrative Office of the U.S. Courts (AO).
According to the AO's most current publicly available data (through
June 30, 2013), the D.C. Circuit's ``caseload profile'' shows it to be
the lowest in four out of five measured categories of appeals in
``actions per panel'' among the 12 regional circuits in the country.
In terms of absolute numbers, the court has the lowest number of
``total appeals'' annually among all Circuits with only 1,193 appeals
filed through September 30, 2012. That number is actually down more
than 13% from 2005 when it was 1,379.
Measured by the number of cases ``per active judge'', the D.C.
Circuit dropped from 99 cases on average in the 2003-2004 term to only
81 in the most recent year.
Rather than focus on ``pending'' cases, a statistic that includes
decisions routinely ratified by Circuit Court judges after initial
review and recommendations by clerks (including 34(j) cases), a better
proxy for the workload of an individual judge is the number of ``signed
written decisions per active judge.''
Through June 30, 2013, the national average was 58. As of September
30, 2012, the average for the judges on the D.C. Circuit is 17. This is
less than one-third the national average. If anyone suggests this is an
aberration then consider the greatest number for the court in the last
six years was only 21.
In 1985, the court adopted a case management plan that required
judges to sit eight times a year for four days and to participate in
oral argument in 112 cases annually. The sittings have been steadily
reduced to three-day sessions and the number of oral arguments has
shrunk dramatically--to only 72.
Our witnesses will offer further detail but it is clear that by any
reasonably objective criteria, the D.C. Circuit has the lowest caseload
of any of the 12 regional circuits. And we haven't even begun to
consider the contributions of the six active senior judges who the
Chief Judge, Merrick Garland who was nominated by President Clinton,
identified as the equivalent of 3.25 full time active judges. So, in
effect, the court already operates with 11.25 judges.
Nor have we begun to consider that we have finite resources as a
nation and that there are other Circuits with a demonstrably greater
need for additional judges.
So if there isn't actually a problem with the court being ``short-
staffed'' and it isn't unfair or not doing its work, what is driving
the President and his allies to go to such lengths? The evidence
suggests they object to not batting a thousand in litigation and think
the court is, in fact, functioning too well.
But before looking at that, let's consider what standard the
current leaders of the Senate Judiciary Committee considered
appropriate for the D.C. Circuit just a few short years ago. That was
when President Bush nominated Peter Keisler to the court. The ``Keisler
standard'' was publicly proposed and enthusiastically endorsed by eight
Democratic Senators in a July 27, 2006 letter to the then-Chairman of
the Judiciary Committee, the late Senator Specter.
At the outset, the letter states, ``Mr. Keisler should under no
circumstances be considered--much less confirmed--by [the Senate
Judiciary] Committee before we first address the very need for that
judgeship . . . and deal with the genuine judicial emergencies
identified by the Judicial Conference.''
The authors went on to assert that ``by every relevant benchmark,
the caseload for that circuit has only dropped'' and insisted that
``before we rush to consider Mr. Keisler's nomination, we should look
closely . . . at whether there is even a need for this seat to be
filled and at what expense to the taxpayer.''
What criteria did they propose to measure caseload? Their letter
nowhere mentions ``pending'' cases, which are suspect because they
generally don't involve much ``judge-time''. Instead, they said the
standard is: 1) ``written decisions per active judge''; 2) number of
appeals resolved on the merits per active judge''; and 3) ``total
number of appeals filed.'' Since 2005, these numbers are down in two
out of three categories.
The letter concluded:
``we believe that Mr. Keisler should not jump ahead of those
who have been nominated for vacant seats identified as judicial
emergencies by the non-partisan Judicial Conference. . . . We
should turn to [judicial emergency] vacancies first; emergency
vacancies should clearly take priority over a possibly
superfluous one.
Given the singular importance of the D.C. Circuit, we should
not proceed hastily and without full information. Only after we
reassess the need to fill this seat, perform reasonable due
diligence on the nominee, and tend to actual judicial
emergencies, should we hold a hearing on Mr. Keisler's
nomination.''
In closing, the letter emphasized it reflected ``the unanimous
request of Democratic Senators.'' So the Keisler standard is, in fact,
the standard of all ``Democratic Senators''--at least when there is a
Republican in the White House.
So this isn't the ``Bob Goodlatte standard.'' And it isn't the
``Republican Senator'' standard. It is, by its own terms, the
``Democratic Senator standard.'' When applied honestly and
consistently, it admits of only one conclusion--we shouldn't be packing
judges on to a court where they are not needed especially when there
are higher judicial priorities.
So now we know where they stand. Or do we?
It appears the 2013 Senate Democrats are having an identity crisis.
They are at odds not with Republicans but with earlier iterations of
themselves. Consider one senior Democrat's complaints about the D.C.
Circuit ruling that the President cannot make recess appointments
unless the Senate is . . . actually in recess. With all due respect to
our colleague, that hardly seems like a decision that should provoke
fulminations. Indeed, it's a decision that not only respects the
Constitution but also the historic role of the Senate as the ``world's
greatest deliberative body.'' Nevertheless, he told an audience in
March that ``Our strategy will be to nominate four more people for each
of those vacancies.'' And ``we will fill up the DC Circuit one way or
another.'' That certainly doesn't sound like his concern has anything
to do with the court's caseload.
A few months later, some groups united behind the call to pack the
court, complaining the court is ``evenly split between Republican and
Democratic presidents' appointees'' and disclaiming that a majority of
the court's ``senior judges--who still can and do decide cases--were
appointed by Republican presidents.'' That doesn't sound like they're
concerned about the ability of the court to function.
``[T]he president's best hope for advancing his agenda is through
executive action, and that runs through the D.C. Circuit,'' offered one
advocate. Shortly thereafter, the president responded with his three
simultaneous nominations, implying as previously noted that his
decision was out of concern for the D.C. Circuit judges' ability to
properly complete their work.
But sadly, this isn't the first time the president and his allies
have packed circuit courts of appeals with judges at a time when a
court's workload is, in fact, decreasing. Reminiscent of the D.C.
Circuit, the Fourth Circuit Court of Appeals in Richmond has actually
``canceled'' argument dates for two successive months ``because the
court is current with its caseload and did not have cases needing
argument on Friday in October or December.''
As recently as December 2007, there were only 10 ``active'' judges
on the Fourth Circuit. Today that court, for the first time in its
history, is at its full authorization of 15 judges. Of those 15, six
(40%) were nominated by the president and confirmed by the same
Democratic Senators who wrote of their earnest concern for taxpayers in
July 2006.
In terms of caseload, the Fourth Circuit's total appeals filed
(through June 30, 2013) are down from 5,460 in 2006 to only 5,064
today. How many judges were needed to handle the increased caseload
back when there was a Republican in the White House and Republicans
controlled the Senate in 2006? Only 12. Looked at another way, there
has been a 25% increase in judges on the Fourth Circuit in seven years
at a time when the caseload actually declined 7%.
But for the President and Senate Democrats, judicial authorizations
are a floor not a ceiling. For them, this isn't about ensuring scarce
taxpayer dollars are spent wisely and that courts have the resources
they need where they are most urgently required. This is about
advancing a political agenda and ensuring our federal courts, which
were intended by our founders to decide cases and controversies based
solely upon the Constitution and the rule of law, instead are made
instruments of their political will.
That much was made clear when the Senate Majority Leader emphasized
in August that he was determined to shift the ideological balance of
the nation's second-highest court. ``We're focusing very intently on
the D.C. Circuit.'' ``We need at least one more. There's three
vacancies. And that will switch the majority. So we're working on it.''
Some might say what of it? The President was re-elected. The
Democrats maintain control in the Senate. To the victor go the spoils.
But our system of justice is far too important to become a political
pawn. As President Truman stated at the ceremony when the cornerstone
of the very building that houses the D.C. Circuit was first laid:
``To our forefathers, the courts were the distinctive symbol of
the kind of government--the kind of society--which they were
creating in the wilderness of this continent. This new Nation
was to be a democracy-based on the concept of the rule of
law.''
Before taking the oath of office as the 17th Chief Justice of the
United States, Chief Justice John Roberts served two years as a Judge
on the D.C. Circuit. In 2005, he delivered a lecture at the University
of Virginia entitled, ``What Makes the D.C. Circuit Different: A
Historical View.''
In his remarks, he concluded the D.C. Circuit is ``a court with
special responsibility to review legal challenges to the conduct of the
national government.'' That conclusion is one that has been embraced
and frequently asserted in recent months by close allies of the
administration's court-packing scheme.
But an important part of Roberts' remarks they have either not
noted or conveniently failed to point out is the portion that deals
with the consequences of a court challenging the conduct of a powerful
executive. They have also not highlighted the irony that their plan to
pack the court is intended to ensure the court is made more pliant and
deferential to their vision of expansive executive authority.
In describing what happened when the court challenged President
Lincoln's decision to suspend the writ of habeas corpus in the District
of Columbia and subsequent congressional action to abolish the court
and to appoint four new judges more to the Presidents' liking, Judge
Roberts recounted:
This Civil War episode is significant in two respects. First, I
believe it is a unique episode in American legal history, in
which reaction to a particular decision resulted in the
abolition of the court and the termination of the judgeships.
Second, it shows what has been a characteristic of the District
of Columbia Circuit from the beginning--that to the extent the
court asserts unique authority in the area of reviewing
decisions of the national government, it is also uniquely
vulnerable.
Today, more than at any other time in the past century and a half,
I believe the evidence shows the D.C. Circuit is ``uniquely
vulnerable'' to the political branches of government. Specifically, it
is being targeted by and is susceptible to the unrestrained ambitions
of the party currently in charge of the White House and the Senate.
Contrary to the implication, its vulnerability is not based upon
any evidence the court isn't ``fair and functioning'' but it derives
from a perspective that the court has performed its ``special
responsibility to review legal challenges to the conduct of the
national government'' and the conduct of this president's
administration all too effectively.
The Senate Majority Leader offered recently that the D.C. Circuit,
``is, some say, more important than the Supreme Court.''
The public would be wise to take note of the determination of the
Senate Majority Leader and the Democratic members of the Senate to
change the rules and the rulings of the court. The ongoing campaign to
pressure and reshape the D.C. Circuit is designed to subordinate the
rule of law and to elevate political and ideological considerations in
rendering constitutional and legal judgments. As such, it is an effort
all Americans should be concerned about.
If Republican Senators have any doubt what they ought to do in this
situation then they should recall and faithfully apply the standard so
forcefully and clearly articulated by the ``unanimous request of
Democratic Senators'' in 2006.
They should also take note of the characterization offered by the
current Chairman of the Senate Judiciary Committee in 2002:
``When a President is intent on packing the courts and stacking the
deck on outcomes, consideration of balance and how ideological and
activist nominees will affect a court are valid considerations.''
A President intent on packing the court and stacking the deck on
outcomes is exactly what we have here. But the campaign to politicize
our courts and to specifically target the ``second-highest court in the
land'' risks not merely wasting scarce public funds but squandering
something much more precious--public confidence in the independence of
the judiciary.
This campaign has nothing to do with ``fair and functioning''
courts. It has everything to do with ideology and power politics.
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