Speeches & Floor Statements
Posted on October 30, 2013
The majority leader says it is time to cut off debate and vote on the President's nominees to fill three vacancies on the District of Columbia Court of Appeals. I will not vote to end debate now because I think such a vote would be premature.
Before the Senate has an up-or-down vote on the three judges, there is something else we ought to do first. We should first consider the bipartisan proposal that was made 10 years ago to have the right number of judges on this federal appellate court. For more than a decade, senators of both parties have argued that this court has more judges than it needs and that other federal appellate courts have too few. In 2003, 2005, and 2007, with a Republican president in the White House, Republican Senators Sessions and Grassley introduced legislation to reduce the number of seats on the D.C. Circuit.
In 2006, they were joined by a distinguished group of eight Judiciary Committee Democrats who made the same argument. These included the chairman, Senator Leahy, Senator Schumer, Senator Feingold, Senator Kennedy, Senator Feinstein, Senator Durbin, Senator Kohl, and Senator Biden. When President Bush nominated Peter Keisler to the D.C. Circuit, the Democrats wrote Senator Specter, the committee chairman, a strong letter.
The letter says:
“We believe that Mr. Keisler should under no circumstances be considered -- much less confirmed -- by this Committee before we first address the very need for that judgeship...and deal with the genuine judicial emergencies identified by the Judicial Conference.”
The Democratic senators argued, first, the committee should -- before turning to the nomination itself -- hold a hearing on the necessity of filling the 11th seat on the D.C. Circuit, to which Mr. Keisler has been nominated. They cited a number of objections by Senators to the need for more judges on that circuit.
They then argued 6 years ago:
“[That] since these emphatic objections were raised in 1997, by every relevant benchmark, the caseload for that circuit has dropped further.
“Only after we reassess the need to fill this seat and tend to judicial emergencies should we hold a hearing on Mr. Keisler's nomination.”
That was the Democratic senators' position in 2007. These distinguished Democratic senators were not only forceful in 2006 and 2007, they were persuasive. They worked with President Bush and Congress agreed to reduce the D.C. Circuit by one seat and add it to the Ninth Circuit, where the caseload was 526 filings per judge -- well above the caseload average for all the judicial circuits.
In 2007, Senator Feinstein, a Democrat, and Senator Kyl, a Republican wrote:
“It makes sense to take a judgeship from where it is needed the least and transfer it to where it is needed the most.”
Mr. Keisler, by the way, was never confirmed. For two-and-a-half years his nomination was held in the Judiciary Committee, from June 2006 until January 2009. The same arguments made in 2006 and 2007 should be persuasive today.
Today, the average caseload for the D.C. Circuit -- even if it were reduced by three judgeships to the eight seats currently occupied -- would be less than one-half the national average for circuit courts. The national average is 344 cases filed per judge this year in federal appellate courts. The D.C. Circuit average, if it were reduced to the 8 current judges, would be 149 per year. The national average is 344 cases per year. The D.C. Circuit average -- even if it is reduced to 8 -- would be 149 per year, less than half.
Since 2005, there has been a decrease of 27 percent in the number of written decisions by an active judge on the D.C. Circuit. Since 2005, the number of appeals filed in the D.C. Circuit has fallen by 17 1/2 percent.
Before it considers any of the president's nominees for the D.C. Circuit, the Senate should do in 2013, today, what Republican President Bush and the Democratic Senate did in 2007; first, consider the appropriate number of judges for the D.C. Circuit, and then, as Senator Kyl and Senator Feinstein wrote, "take a judgeship from where it is needed least and transfer it to where it is needed most."
I heard the argument that the cases in the D.C. Circuit are more complex than in another circuit, and therefore the caseload ought to be lighter. With eight judges, it will be a lot lighter -- half the national average for circuit courts. That ought to allow plenty of time to write decisions in complex cases.
Other circuits have complex cases as well. For example, the Second Circuit, including New York, regularly handles many of the most complex cases that come to the federal courts. Finally, there are a number of senior judges who are active in the D.C. Circuit -- that is true in almost all the circuits, and that is part of the way our system works today. They can carry some of the workload when that becomes necessary.
I think it is striking that even if this court only has eight seats, that the average caseload is less than half of the national average. So why does it need three additional judges? That is the question Democratic senators asked in 2007, and that is what the Senate and President Bush addressed. That is the question we should be asking today before we fill any more seats for an underworked circuit court.
So I will not vote to end the debate on the president's nominees until the Senate does in 2013 what Democratic Senators suggested and what the Senate did in 2007: Assess the need for judges on the D.C. Circuit and transfer judges from where they are needed least to where they are needed most. That means that before we act on the president's three nominees, the Judiciary Committee and the full Senate should consider Senator Grassley's legislation that would transfer one judge to each of the overworked Second and Eleventh circuits and eliminate one judge, leaving the D.C. Circuit with a caseload that still is less than half the national average for the eight remaining judgeships. Then, if there are still vacancies to be filled in the D.C. Circuit, the Senate can consider them one by one.
The Senate has treated President Obama very well in considering his nominations. According to the Congressional Research Service, as of August of this year President Obama's Cabinet members were, on average, 54 days -- moving from announcement to confirmation at about the same pace as those of President Bush and President Clinton.
As far as President Obama's judicial nominees, President Obama has had 38 article III judges confirmed at this point in his second term, including 9 circuit judges, 25 district judges, and 4 judges to other article III courts. By comparison to those 38, President George Bush had 16 article III judges confirmed, 7 circuit judges, 7 district judges, and 2 judges to other article III courts.
What about a waiting list of judges who are waiting to be confirmed by the Senate? Is there a big backlog? The answer is no. As of today, only two circuit judges have been reported by the committee and await floor action. Remember, the committee is controlled by Democrats and they can report whomever they want. Both of these are for the D.C. Circuit and are not judicial emergencies. Only seven district court nominations await floor action. None have been waiting long. Three were reported in August, and four were reported in September.
So while there are always a few nominations that provoke controversy and take a while to consider, one of the Senate's most important and best-known powers is the constitutional authority to advise and consent on presidential nominations. That is a part of the checks and balances our Founders set up so we didn't have a king, we didn't have a tyranny. We made it slower. We gave the president the right to nominate, but the Senate has the right to advise and consent. Sometimes that takes a while. Sometimes those nominees are rejected.
I believe and have argued consistently that with rare exceptions, presidential nominations deserve an up-or-down vote after an appropriate time for consideration. President Obama's nominations have been receiving timely up-or-down votes. But first, as senators of both political parties have argued for 10 years, we should make certain we have the right number of judges on the court. We don't have money to waste in this country with the debt we have today. We should transfer judges from where they are needed the least to where they are needed the most. That is the sensible thing to do. The president's nominees for the D.C. Circuit will receive up-or-down votes insofar as I am concerned unless there are exceptional circumstances.
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