October 31, 2013
Ranking Member, Senate Judiciary Committee
On the Motion to invoke Cloture on the nomination of
Patricia Ann Millett, to be United States Circuit Judge for the District of Columbia Circuit
Thursday, October 31, 2013
I rise in opposition to any motion to invoke cloture on nominees for the D.C. Circuit. I am somewhat disappointed that the Senate Majority wants to turn to a controversial nomination next rather than continue on the path of cooperative confirmations or to more important Senate business. It seems to me that scheduling such a controversial vote, in the closing weeks of this session of Congress, is designed to simply heat up the partisanship of judicial nominations.
My opposition is based on a number of factors:
First, an objective review of the court’s workload makes clear that the workload simply doesn’t justify adding additional judges to this court, particularly when additional judgeships cost approximately $1 million, per year, per judge.
Second, given that the caseload doesn’t justify additional judges, you have to ask why the President would push so hard to fill these seats. It appears clear the President wishes to add additional judges to this court in order to change judicial outcomes.
Third, the court is currently comprised of four active judges appointed by Republican Presidents and four active judges appointed by Democrat Presidents. There is no reason to upset the current make-up of the court, particularly when the reason for doing so appears to be ideologically driven.
Let me start by providing my colleagues with a little bit of history regarding this particular seat.
It may come as a surprise to some, but this seat has been vacant for over eight years. It became vacant in September 2005 when John Roberts was elevated to Chief Justice of the United States.
In June of 2006, President Bush nominated an eminently qualified individual for this seat, Peter Keisler. Mr. Keisler was widely lauded as a consensus, bipartisan nominee. His distinguished record of public service included service as Acting Attorney General. Despite his broad bipartisan support and qualifications, Mr. Keisler waited 918 days for a committee vote that never came.
When he was nominated, Democrats objected to even holding a hearing for the nominee, based on concerns about the workload of the D.C. Circuit.
During Mr. Keisler’s hearing, one of my Democrat colleagues summarized the threshold concerns. He said:
“Here are the questions that just loom out there: 1) Why are we proceeding so fast here? 2) Is there a genuine need to fill this seat? 3) Has the workload of the D.C. Circuit not gone down? 4) Should taxpayers be burdened with the cost of filling that seat? 5) Does it not make sense, given the passion with which arguments were made only a few years ago, to examine these issues before we proceed?”
I have not heard these same concerns expressed by my friends on the other side with respect to the current batch of nominations to this court. But that does not mean that these issues have gone away.
Statistics from the Administrative Office of the U.S. Courts show that caseloads on the D.C. Circuit have decreased markedly over the last several years. This decrease is evident in both the total number of appeals filed and the total number of appeals pending.
I’ve indicated on a number of occasions that I believe these seats are not even needed. While I’ve gone over the statistics on a number of previous occasions, I want to remind my colleagues and others regarding the facts of the workload of the D.C. Circuit.
First I’d like to remind my colleagues that in 2006, Democrats argued that the D.C. Circuit caseload was too light to justify confirming any additional judges to the bench. Since that time, the caseload has continued to decrease.
In terms of raw numbers, the D.C. Circuit has the lowest number of total appeals filed annually among all the circuit courts of appeals. In 2005, that number was 1,379. Last year, it was 1,193, a decrease of 13.5 percent.
There are a lot of different ways to look at these numbers, but perhaps the best numbers to examine are those that measure the workload per active judge.
The caseload has decreased so much since 2005, that even with two fewer active judges, the filing levels per active judge are practically the same.
In 2005, with 10 active judges, the court had 138 appeals filed per active judge. Today, with only 8 active judges, it has 149. This makes the D.C. Circuit caseload levels the lowest in the nation and less than half the national average.
It has been suggested that there are other circuits, namely the 8th and the 10th, that have lighter caseloads than the D.C. Circuit. This is simply not accurate.
The D.C. Circuit has fewer cases filed and fewer cases terminated than either the 8th or the 10th Circuits. Cases filed and cases terminated measure the amount of appeals coming into the court and being resolved by the court, respectively.
Now, some of my colleagues have been arguing that the 8th and 10th Circuits are similar to the D.C. Circuit, based on a comparison of “pending cases.” But “cases pending” does NOT measure how many cases are being added and removed from the docket.
When looking at how many cases are added, or filed, per active judge, the D.C. Circuit is lowest with 149. It’s nowhere near the 8th Circuit’s 280 or the 10th Circuit’s 217.
When looking at the number of cases being terminated by each court, the D.C. Circuit is once again the lowest at 149. Again, the 8th Circuit and 10th Circuit courts are much higher at 269 and 218, respectively.
Now, let me mention one other important point about “pending appeals” and the statistics that my colleagues have been citing.
Several of my colleagues said on the floor yesterday that in 2005 there were only 121 pending appeals per active judge.
Now, that number seemed a little odd to me, so we looked into it a bit further. In order to arrive at that number, my colleagues appear to be taking the total appeals for the 12 month period ending on June 30, 2005, and dividing by 11.
But as it turns out, there were nine active judges for almost that entire 12 month period.
Janice Rogers Brown was sworn in on June 10, 2005, and Judge Griffith was sworn in on June 29, 2005.
As a result, during that 12 month period, there were 10 active judges for a total of 19 days. There were 11 active judges on the D.C. Circuit for a grand total of 1 day.
And just a few months later in 2005, the court was back down to nine active judges after Judge Roberts was elevated to the Supreme Court, and Judge Edwards took senior status.
This is how hard-pressed the other side is to refute what everyone knows to be true – the caseload for the D.C. Circuit is lower now than it was back in 2005.
In order to have a statistic that supports their argument, the other side is claiming there were 11 active judges for that 12 month period, when that claim was true for a total of 1 day.
The bottom line is this: The objective data clearly indicate the D.C. Circuit caseload is very low and that the court does not need any additional active judges. And that is especially true if you use the standard Senate Democrats established when they blocked Mr. Keisler.
In addition to the raw numbers, in order to get a firsthand account, several months ago I invited the current judges on the court to provide a candid assessment of the caseload.
What they said shouldn’t surprise anyone who has looked at this issue closely. The judges themselves confirmed that the workload on the D.C. Circuit is exceptionally low, stating, “the Court does not need additional judges.” And, “If any more judges were added now, there wouldn’t be enough work to go around.”
Those are powerful statements from the judges themselves.
Given these concerns, it is difficult to see why we would be moving forward with additional nominations to this court, especially in a time when we are operating under budget and fiscal constraints.
Unfortunately, the justification for moving forward with additional D.C. Circuit nominees appears to be a desire and intent to stack the court in order to determine the outcome of cases this court hears.
It is clear that the President wants to fill this court with ideological allies for the purpose of reversing certain policy outcomes.
This is not just my view, but has been overtly stated as an objective of this administration.
Earlier this year, a Washington Post Article observed, “Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.”
Even a member of the Democrat leadership admitted on the Senate floor that the reason they needed to fill these seats was because, as he saw it, the D.C. Circuit was “wreaking havoc with the country.”
This is perplexing, given the current make-up of the court. Currently, there are four Republican-appointed judges and, with the most recent confirmation, there are now four Democrat-appointed judges. But now, apparently, some on the other side want to make sure they get favorable outcomes from this Court.
So I have concerns regarding filling seats on this court, which clearly has a very low caseload. And I have greater concerns about this President’s agenda to stack the court and upset the current make-up, simply in order to obtain favorable judicial outcomes.
Given the overwhelming lack of a need to fill these seats based on the caseload, and especially considering the cost to taxpayers of over $1 million per judge, per year, I cannot support this nomination and I urge my colleagues to reject it as well.