U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

85–282 PDF 2014

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 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

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 

(1) 

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. 
2 

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 
3 

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:] 
4 

hOll. a. ... ,toP~., Coon. 

a...1"" . ... Sen>!e Judkla ry Commln •• 

~ub<om"'ln •• an B.nk,uplty .nd lite Courts: 

U7A ~ ...... ~ Se" . .. otnc. Borildl"ll 

Wulol<>l!' ..... DC lOSlO 

0 .. , CIIOI""," (.00,..-, 

,,,,,,,~mm~w ..... n,," w~oc~ 

~ JOl.nI>,"", • f/oX: /02.-$-6MS . WWWTHf\lSCl)f<~1lRG 

To , .. is, ,hi! Subcom",,"ee '" M. oonlido .. tion of l he ,,,,,,,010 boo pre'''''ted o! Its Septembe, 

to. 2()13 ~' "rin& 0" !hI! "fO'de,.1 Judgt-,hlp Aa of :WH." I ~. '''''lI .iI.1. II comido •• ,., ......... d _ocI 

....... lor !U""" Mllo"wld .. Indudl", ,h. tU"ltO<! SIll .. ""'ft of Ap~o~ for !hel D.c. OrwM.·' _.re 

'""~"I DO bell>Jf of COfISlIMlonol o\a:cuni;\bilil'/ eoOle, m ainly to 11Ili •• " I bill recent!'; Inuoduted by 

Judicia ry """mitt"" M'''kIn& M.mbe, a..,1es G"",.Iey'o .lImloo'. lmmO'da,elV I~' .. 0/ ,h. 11 

lu!hon f<il J<ld& •• hlpo f""" tIl. O.c. a ,wit Unlil:.e.be Fed.",1 Jud, .. ~p A<J. 5<:""01" G .... 'Ie-(. 

prnpo<lllI nOl W ... o. recomm....o. llons by 'M Judl,lal "'n~"ooe 01" on a"v OIh .. OIudy. R.o"' .. , I. 

opp"",, !o be ", .. "drd r>rim.ri~ 10 """,en! !he Pre.loJo". horn filll"i """' "_ an this critical ""'ft, It 

,1Iou1d be .ejKlld 10' U.I. ",",on. 

On APf~ 10. 1013, .. Ihe .I.rt oll ' I"dido", Commtn • .,., <anflrmallO/1 tIe"inI fe, "'en·O.c. 

O .... il ttOml_ Sri Srl."'~". Sena"" G, ......... """",,"oed IhOlIte W30 In l.ooLldr\ilI 'Court Effido"<"l 

Act,' S. 699. whid> would, II ...... \eel, dmlrloto !/I,,,. of !he. U .IIIhorift<l jud&esi>lps from , .... D.C. 

OmHl.lnd odd O"~ j"d8 .. ~lp ,uh 10 the ~d 0"",11 "d u... 11th Orndt.' Sen.tor Gra.<ley 

JunlOrd S, m by hlghlJshtln;! the "I",b. lo"""" In the .. o,~loads 0/ !h' !h .... 0,,,,,11 .. . "0 .\lI1<!<i .I\ot 

u... blll WOIlkll>~e offetf upon e'''"<I''''"I.· All 01 .n. 0. "", R"""blkan ",,,,,,be .. 0I!h. ludklo..,. 

eom"'l!lee.~ 00'11'"01 ..... 110 • ..., .. 0/ the bill 

While It Is ...,neal)< ~~I",.,e Ie, ","",bo .. 01 ,~ . Sonoto.o q".,~on wIIe!h ... 'pe<iIi< led"",1 

to"ft III. 100 monv /lJdge., o r too _, bo>&d on .. ortd ... d, S, 69910" fOf I>tl'<"'d .,10'8 IUd! qU6tlMs 

_ ~ -on • .,. .. ,II ..... 40<1 I, <lot> <0 without the ~ell1 or ,"V o/!tIe Indlclo 0/ n .... ~lity on<! obJeclIYitv 

tho •• lIould ~crom"'''''1 • ,,'<>!>Olaf !o d,. motlaltv 'rdua: Ilw .1 .. of. ledonl "",,<I. Pe,II.", 1hI! ""'" 

te"I"lIlndlcolloo Ih.t thl. 11<0110.11" no\ ob)KtiYe or "."'~ 10 tll,,'n one loti """"" ~ WC\Jld ellmh,,' • 

••• "", 1"" 0/ tho >em on h~ D.L Clrrujt yo. Ills nOl 1>& .... On .".,. lIudv 01" lile court'. wo ....... d ~, 

udl~1 OIoHlne <0""'001"8 . 1101 ~cII .n .",ractdl .. ry re6uctlon In !~ num~1 01 j<nI~ ... on tIIi. 

Imp<>n.nl to"ft Is ....... ,. d. tn "'". the pro __ 1 fi"o,,, rece"! reco",,,,""da~,,,,, of the lud,dol 

, A......nc, 01 Hon. """"~ 1.c"'V. 0> .. "..... St_ kldl<IoryCommlttn, ' >«",!.e "' ...... o.!HISot: ('"", I. 

lOll) 

• ___ ChMIHGf ........ ___ ~d$tf~.ndCOV~<ffocift\<y_I ......... I0. 

lOll) ...... _ .. <l>tIpJ,..""'.., .... OV ...... "'......, ..... k:Ie.d"'1<un .... '-aOl"".,c lSOl; ~l6>. '. 
5 

Conference. By letter of AprH 5, 2013 to Senate. Judiciary Chairman Patrick leahy, a copy of which was 

also sent to Senator Grassley, the Judicial CO;lference transmitted to the 113th Congress "the 

Conference's Article IH and bankruptcy judgeship recommendations and corresponding draft legislation 

for the 113th Congress II (the basis of the proposed Federal Judgeship Act of 2013). With respect to the 

Circuit Courts, these recommendations included the addition of four judges to the Ninth Circuit and one 

to the Sixth Circuit; there was no recommendation to add any judges to the Second or 11th Circuits, or to 

eliminate any seats on the D.C Circuit or not fill any existing vacancies on that court, S. 699 would not 

only dramatically reduce the size of the D.C. Circuit bench, but it would also add judgeships to courts 

where the Judicia! Conference has not stated they are needed. 

Senator Grassley's proposal is based on a comparison ofthe numbers of cases in the D.c' Circuit 

with the numbers of cases. in other Circuits, equating one D.C. Circuit case with one case in the other 

courts in terms of workload burden. While this might be an appropriate methodology when comparing 

the workloads of other appellate courts, it is not appropriate for the D.C. Circuit, whIch, according to the 

Federal Judicial Center, has a unique caseload heaVily weighted with administrative agency appeals 

"that occur almost exclusively in the D.C. Circuit and [are] more burdensome than other cases in several 

as.pects/,4 including having "more independently represented participants per case" and "more briefs 

filed per case/' as well as the fact that they are "more likely to have participants with multiple 

objectives, involve complex or statutory law, and require the mastery of technical or scientific 

information. ,,5 

The unique nature of the D.C. Circuit's workload has been noted repeatedly by those who have 

served as judges on that court, including no less an authority than the Chief Justice ofthe United States, 

John Roberts, who has said: -

It is when you look at the docket that you really see the differences between the D~C. Circuit and 

the other courts. One-third ofthe D.C. Circuit appeals are from agency decisions. That figure is 

less than twenty percent nationwide. About one-quarter of the D.C. Circuit's cases are other 

civil cases involving the federal governmenti nationwide that figure is only five percent. All told, 

about two~thirds of the cases before the D.C. Circuit involve the federal government in some 

civi! capacity, while that figure Is less than twenty-five percent nationwide. 6 

As former D.C. Circuit Chief Judge Pat Wald -- who served on that court for more than twenty years--

has explained: 

The D,C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations 

with the greatest impact on ordinary Americans' lives: dean air and water regulations, nuclear 

plant safety, health-care reform issues, insider trading and more. These cases can require 

thousands of hours of preparation by the Judges, often consuming days of argument, involving 

4 U.S. Gene:al Accounting Office, Federal Judgeships: The General Accuracy o/the Case-Related Workload 

Measures Used to Assess the Need for Additionul Dfstrict Court and Courts of Appeals Judges!Jfps, GAO-03-788R, at 

10 (May 30, 2003) {quoting Federal Judicia( Center, Assessment of Cose/oad Burden In the US, CDurt of Appeals for 

the D.C. Circuit, Report to the Subcommittee on JudiciaiStatistics of the Committee on Judicial Resources of the 

Judicial Conference of the United States (Washingtor, D.C 1999)). 

5 1d• 

(; John G. Roberts, Jr., "What Makes the D.C. Circuit Different? A Historical View," 92 Va. l. Rev. 375, 376-77 (2006). 
6 

hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages 

of record - aU of which culminates in iengthy, terhnically intricatf! legal Dpinions,' 

Judge Wald further noted that '1My colleagues and I worked as steadily and intensively as judges on 

other circuits even ifthey may have heard more cases. The nature ofthe D.C. Circuit's caseload is what 

sets It apart from other courts."s 

Indeed, precio;ely becrsuse ofthe unique and complex nature ofthe D.C. Circuit's caseJoad, the 

Judicial Conference does not apply to the D.C. Circuit the caseload form,ula that it uses to evaluate how 

many judges are appropriate for the other Circuit Courts. '3 In this respect, the Conference recognizes 

what Senator Grassiey's proposal does not -~ that the D.C. Circuit's cases cannot be equated 

numerically, one for one, with the caSes of the other federal appellate courts. Senator Grassley's 

proposai is based on the fla'Ned comparison of apples and oranges. 

In addition, the assertion that the current caseinad of the D.C. Circuit requires the elimination of 

nearly 30% of its authorized Judgeships is contradicted by the fact that other recent nominees were 

confirmed to this same court when the case load numbers were less. For example, President George W. 

Bush's nominees Janice Rogers Brown and Thomas Griffith were confirmed to the 10th and 11th seats on 

the D.C. Circuit In June 2005, even though the caseload per authorized judge {l09) was smaller than it is 

now {132}.lO That number was also smaller when John Roberts was confirmed to the D.C. Circuit in May 

2003 -- 83 cases pending per authorized judge - as well as when Brett Kavanaugh was confirmed in May 

2006 -- 125 cases pending per authorized judge, 11 

And in February 2003, when there were eight active judges on the D.C. Circuit (the.same 

number as now), Senator Orrin Hatch stated the following in urging the confirmation of Bush nominee 

Miguel Estrada to the court's ninth seat: 

7 Patricia M. WJld, "Senate must act on appeals court vacancies:' Washington Post (Feb. 28, 2013), available at: 

< http://articles.washingtonpost.com/2013-02-28!opinions!37350554_1_senior-judges-chief-judgeappeals-court-vacancies>. 

" fd. For more information, .'lee also Judge Wald's remarks about the D.C. Circuit atthe March 25, 2013 discussion 

of "Why Courts Matter: The D.C. Circuit," here: 

http://www.americanprogress.org/events/2013/03/14/56746/why-court5-matter-the~d-c-circu[t/. 

9 See U,S. Genera! Accounting Office, FederalJudgeshfps: The General Accuracv Dfthe Case-Related Workload 

Measures Used to Assess the Need for Additional District Court and Courts of Appeals Judgeships, GAO-03-7SSR, at 

8, 11 (May 30, 2003). 

lQ On March 31, 2005 -- the date closest to the confi(mations of Brown and Griffith for which the5e figures have 

been published by the U,S. Courts -- there were 1,313 cases pending in the D.C. Circuit, which at the time- r,ad 12 

authorized judgeships, or 109 cases per authorized judge. The most current published U.S. Courts statistics are as 

of March 31, 2013, when there were 1/156 pending cases in the D.C, Circuit, or 132 cases per authorized judge. 

Another way to look at the data Is by cases per active judge, measuring the workload of the judges actually on the 

court. In March :WOS, there were nine active j~dgcs on the D.C. CirCUit, a"d thus 146 cases per active judge. After 

Brown's co~firmation to the 10th seat, there were 131 cases per active judge, a number that dropped to 119 when 

Griffith was confirmed. Currently, with only eight active judges on the D. C. Circu:t, the caseload is 182 appeals per 

active judge, 53% higher than It was when Griffith was confirmed. {With all three current vacancies fi!led, the 

caseload per active judge would be 132.} 

11 These figures <Ire calculated using the number of cases pending on March 31, 2003 and March 31, 2006, 

respectively, the closest dates to the confirmations of Roberts ar,d Cavanaugh for which these statistics are 

published. 
7 

it is a very important court. 1n fact, next to the Supreme Court, it is the next most important 

court in the country- no question about it - because the decisions they make affect almost 

every American in many instances ... f might also add that the D.C Circi/it is in the midst of a 

vacancy crisis unseen in recent memory. Only eight of the court's 12 authorized judgeships 

currently are filled.. The D.C Circuit has not been down to eight active judges since 1980. It is a 

crisis situation because it is extremely important. The vacancy crisis is substantially interfering 

with the D.C. CircuWs ability to decide cases in a timely fashion. As a result, litigants find 

themselves waiting longer and ionger for the court to resolve their disputes. Because so m<Jny 

D,C. CirCUit cases involve constitutional and administrative iaw, this means that the validity of 

challenged government policies is likely to remain in !egallimbo,l2. 

As of March 31, 2003, the nearest date to Senator Hatch's speech for which there are published data 

from the U,S. Courts regarding the D,C. Circuit's workload, the court had 1,001 cases pending, or a 

workload of only 83 cases per authorized judge, Now, as noted above, that workload is 132 cases per 

authorized judge, Moreover, what Senator Hatch said about the D.C. Circuit in 2003 remains true today: 

the court is ofvitai importance to America and it is currently understaffed, not overstaffed. 

Some conserJatives who support Senator Grassley's proposal or who have advocated that the 

Senate not perl11itthe vacancies on the D.C. Circuit to be filled have claImed that President Obama, by 

complying with his constitutional mandate to nominate people to fill authorized seats on the federal 

bench, is engaging in "court packing."B This of course is an utter misuse of the term, which has its 

origins in the proposal by President Frank!in Delano Roosevelt to add new Judicial seats to the Supreme 

Court in an effort to shift the Court's balance - not to a President's simply doing his constitutionally 

specified job, that is, nominating people to fill existing, authorized judicial vacancies. 

It should come as no surprise, then, that even some conservatives have had a hard time 

understanding the "court packing" charge. As Byron York, a Fox News contributor and author of The 

Vast Left Wing Conspiracy, noted/ "it doesn't strike me as 'packing' to nominate candidates for available 

seats."u- American Enterprise Institute scholar Norm Ornstein said that the claim made him "laugh out 

!OUd.,,15 Ornstein continue-d by asking, "How could a move by a president simply to fill long-standing 

existing vacancies on federai courts be termed court packing?,,15 That's a good question. If anything, it 

appears that Senator Grass!cy and other supporters of 5,699 Clre attempting to maintain the D.C. 

Circuit's marked ideological imbalance; with six senior judges continuIng to hear cases alongside the 

eight active judges, the court is starkly divided (or packed, one might say), 9-5, in favor of judges 

appointed by Republican Presidents. 

The D.C. Circuit is rightly considered to be the Nation's second most important court, after the 

Supreme Court. This is because the D.C. Circuit has exclUSive or favored jurisdiction over disputes 

12 149 Congo Rec. No. 21, 51953 (daily ed. Feb. 5,2003) (statement of Senator Hatch, emphasis added), available at: 

<http://www.gpo.gov/fd,y,!pkg!CREC-2003-02-DS/pdfjCREC-2003-02-0S-ptl-PgS1928-3.pdf#page=25>. 

13 See, e.g., Jennifer Bendery, "Republicans Charge Obama With Court-Packing for Trying to Fill Empty Seats," 

Huffinglon Post (May 28,2013) .. available at: < http://w ....W.huFfingtonpost.com/2013/0S/28jobama-courtpacking_ n_3347961.html>. 

14 Byron York, Twitter {May 28, 2013), available at: 

<https:/ /twitter,com!ByronYork/statuses!339J89884672339121>. 

15 Norm Ornstein, "It Might Fina:ly Be Time for the 'Nuclear Option' ir the Senate," The Atlantic (May 30, 2.013), 

available at: < http://www.theatlantic.com!poiitics!archive!2013/0S/it-might-finally-be-tlmc-for-the-nuclearoption-in-the-senate/276377/> . 

16 Jd. 
8 

involving numerous federal laws and regulations, and is responsible for resolving critically important 

cases involving national security, environmental protection, employment discrirninJtlon, food and drug 

safety, separation of powers, and the decisions of a wide array of adminlstrative agencies. The full 

staffing of this court is of nationwide importance. Certainly no decision to effectuate a nearly 30% 

reduction in the number of judges on this critical court, or to dedinp. to fill authorized vacancies, should 

be made in a partisan, political manner and without careful study. 

Sincerely, 

Judith E. Schaeffer 

Vice President 

Doug Kendall 

President 

Constitutional Accountability Center 
9 

, PEOPLE 

,~FORT'" .. , ' AMERICAN r", WAY 

THE DC CIRCUIT'S CASt:LOAD: 

COU.NTERING TII£COP'S HYPOCRISY AND D ISTORTIONS 

UYpiltrlty: ClISclllmd Cling"" Over Time 

RrpublicztM claim 1M DCCircuI"s <:aMloIId iii too !ighlwjIlSlif'y hl~ing IIlOf'e than 8 of its II aeats filled. 

8111,' IICtUBUy had. f/Tlallcr c:asc:1oad .... 1IIm RC'pUbli<;al' WQrled 10 fill 1M 9"'. Io-• ."d 1,1 JCaIS with 

George W. Bush's nominees. 

Now (ObiuTIII): 

Junc 2005 (BUih): 

Ml) 2003 (DlUh): 

July 200} (HIM): 

1,.79 pe:J>dinjj ClIllt'S 

1.3D pClIdmg...-

UlOl pmdlr"CUC'~ 

941 pmdintc..-

GOP say3 8 judg..s are enough 

Brown &: Griffith oonfllll1C'd to 10" " II'" stillS 

Roberts c:.onftnttN to ". _ 

C\oIun! ~ffOl1 ro.. EsIt10b far 10"' $W 

Brown .t KaVIIIIM>III' nom'd rot 10" &; 1,101 iIttIi 

Sen. Grassley Ind his fellow Rel'ublican$ prefer \0 define !he tR-<;(:lo.d bycasco filings over. year, but 

~vcn under d Ull 5yslem, Republicans pushed 10 fill the 9'", 10 .... and 11 - ""81$ RI a lime when the DC 

Circuil's caseloed "Ii lighter than II is today: 

Now (ONma): 

May 200) (Rush): 

-luly200J (BlISh): 

UJ1 filinp 

I ,on riHfl8S 

1.063 mlnp 

GOP .,.. I judge>; ~ etIOiIBb 

RobntI _finned \0 9"' leal 

CIoIUlufl"ort for EsInd& for 1a"leaI 

Brown &; KIV8r\lIug!l nom'lI for 10- &. II" SUI' 

Sen. Gnts"")' trIcd I ,imil. Irick the> J.~ tim~ I Oc"'I)I:BI ... U in the %ilo IlouK'. He held I 

SIIbcommin~ hearin, in OclObtTof I9'9S and pusbed the ideI\hll the: DC Cin;uil should onl)' Mve'1 

_II. Vee e_IfItdt::,.GNulq'# """' tkfilliliOft, il had a mud! biatw=r _,\>IId tMn al M)' po1nldurinl 

the Bush yean. 

I\I9S (Clinton): 

J ..... 2Q()S (Hush): 

1.62' lilln", 

1.,HQ nlll)~ 

Grlll1ley 5Uggesltd 9 j lldllcs wtn: enouglt 

Drown kGfiffilh c:anllrmtd 10 10" II:. II'" Sl:a15 

DI~IOr1;''''I : lavalld Comparisoftl lO lite Other arul .. 

Sen. Gra$sley .nd his Gor colkagues have ci lled lhe DC Circuit "the easI·bw; )'. lca~l-worked appellate 

coun In the nDlion ~ To IUfl'P"rt Ihisateu:<ation. they dire<.:tJy compan: ll!e DC Circuil', raw caseloed 

numbcn WM ~ of other circwl.l. Dul there is no short. go: of.:xperu who hayO pointed 0111 WI, 

Iwcause of the DC Circuil " unique caielollld of oompln adminiJlnllive o;ues. oornpariSUIIl 1O other 

cin;ui\s 8ftc "','Ilid. 

The point Willi made most rec:enlly in Set>"'mhtr by the cMiruflheJudici.l Conrm:nct's Standing 

Commiuee On Judicial Resouroe!l, ",hiclt Bn'l)"(e~ CQuns' CII,do"ds and makes rccomm~ndaljons 
10 

concerning how many judgeships are needed to get the work done. Tenth Circuit Judge Timothy 

Tymkovich - a conservative who was nominated to the bench by George W. Bush - discussed this at a 

Senate committee ~C?siJ!g last month. He specifically explained why the D.C. Circuit's caseload is 

different from other circuiis, so much so that the raw-number easeload statistics used for other circuits are 

not relevant to ascertaining the D.C. Circuit's caseload: 

The D.C. [Circuit] Court of Appeals has been excluded from the pure numerical standard. We 

employ a ditloreni process with that court, because orlhe uniqueness of their caseload. They have 

a heavy administrative practice. They have something like 120 administrative appeals pcr 

judgeship panel, versus about 2& for the other Courts of Appeals. So historically, those types of 

cases have driven a more complex and difticult evaluation. Those cases have multiple parties, 

typically issues of tlrst impression, big records, things that make them somewhat outliers 

[compared] to some of the cases we see in the other circuits. Some of those cases arc exclusive 

jurisdiction in the D.C. court So for that reason, we've excluded them from the same processes as 

the other drcui!.s. 

Chief Justice Roberts, who once servcd on the DC Cire.uit, even wrote a law journal article discussing the 

uniqueness ofthat court's caseload and citing its comparatively heavy cascload of appeals from 

administrative agencies. 

So simplistic comparisons of case filings to other circuits are meaningless. 

Based on Grassley's expert analysis and in-depth understauding of cascload statistics, his bill would also 

add seals to the y" and 11 th Circuits. However, the Judicial Conference has rcquested llew judgeships for 

other circuits, not those. In fact, just a few wceks ago, Sen. Jeff Sessions - one of Grassley's Republican 

colleagues on the Senate Judiciary Committee and a co-sponsor orhis bill- even specifically cited the 2nd 

Circuit as onc that did not seem to need new judgeships, based on the data presented by the Judicial 

Conference, and he approvingly noted that the II th Circuit has not requested and does not need any !lew 

judgeships. 

More Hypocrisy on the Other Cireuits 

Republicans have this year unanimously confirmed nominees to other circuits whose easeloads before 

coniinnation were lower than the DC Circuit's. 

glh Cir. 

lOth Cir. 

DCCir. 

153 pending cases per active judge 

150 pending cases per active judge 

135 pending cases per active judge 

GOP voted to confirm Jane Kelly in April 

GOP voted to confirm Greg Phillips in July 

GOP says 8 judges can handle this caseload 

Conclusion 

The GOP's focus on the DC Circuit caseload isn't about efficiency - it's about blocking a Democratic 

president from being able to fill seats on the nation's second highest court. 

The DC Circuit has 11 judgeships by law. Republicans cannot change that law by legitimate means set 

fmth in the Constitution. So they are using obstruction to change a law that they can't change through 

democratic means. 
11 

STATEMENT OF PATRICIA M. WALD, 

RETIRED CHIEF JUDGE OF THE D.C. CIRCUIT COURT OF APPEALS, 

ON COMPLEXITY OF D.C. CIRCUIT CASES 

Before the SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

HEARING ON THE FEDERAL JUDGESHIP ACT OF 2013 

September 10, 2013 

I have been asked to comment on the complexity of the cases on the D.C. Circuit Court 

of Appeals' docket as compared to the other 11 circuit courts of appeal. The comparative 

complexity of its cases is of course only one factor to be considered in deciding the appropriate 

number of judgeships to enable the Circuit Court to do its work efficiently, but it is a singularly 

important one. There is virtually unanimous agreement that the kind and mix of cases that come 

before the D.C. Circuit are exceptionally demanding fTom a technical standpoint, and uniquely 

burdensome in terms of sheer time compared to other circuits. Chief Justice John Roberts noted 

in his 2006 Virginia Law Review article, "\Vhat Makes the D.C. Circuit Different?", written 

while he served on the Circuit, that the D.C. Circuit's caseload is composed of one third appeals 

from federal agencies (the national figure for all circuits is 20%); combined with another one 

fourth consisting of other federal civil cases makes up a total of two thirds of the D.C. Circuit's 

docket involving the federal government rather than disputes between individual parties (the 

comparable national figure is 25% for all circuits). In the now-Chief Justice's own words 

"whatever combination ofletters you can put together, it is likely that jurisdiction to review that 

agency's decision is vested in the D.C. Circuit", adding "lawyers fTequcntly prefer to litigate in 

the D.C. Circuit because there is a far morc extensive body of administrative law developed there 

than in other courts". 

Washington Post columnist Glenn Kessler more recently dipped down another layer into 

these and later statistics gleaned from the Administrative Office of the U.S. Courts that show in 

2012,45% of D.C. Circuit appeals were administrative appeals which he described as "highly 

complex and tak[ing] more time to review". This figure he compared to tl"le less than 3% 

administrative appeals (omitting immigration cases of which the D.C. Circuit rarely has any) that 

is the national average of other circuits. The most recent figures from the Administrative Office 

for the year ending June 30, 2013 show that the D.C. figure remains about the same today. 
12 

(Table B-3). Minimally then, it seems clear that the D.C. Circuit's docket cannot be rationally 

compared to other circuits on the basis of raw case numbers alone, regardless of how those 

calculations are made. 

The greater complexity ofaclministrative appeals manifests itself in judge' s workloads in 

several ways, some statistically demonstrable, some not. The D.C. Circuit according to the latest 

figures has the highest percentage (49.2 %) of decisions on the melits rendered after oral 

argument, in marked contrast to 10 cirmits where oral argument is denied in 70-90% of merits 

cases (63% in the Seventh Circuit). Further, 42% of D.C. Circuit termi.nation decisions on the 

merits result in written, published opinions, again the highest among the 11 circuits and the D.C. 

Circuit's 57% unpublished opinion rate ranks lowest among the circuits, the national figure being 

gR%. (Tables 8-1 and S-3). These statistics indicate that a higher percentage of D.C. Circuit 

cases than those of other courts of appeal merit oral argument and require the research and 

drafting that attend a formal opinion with precedential value. The larger percentages of appeals 

accorded sunnnary treatment in other circuits indicates a lesser degree of judicial input for their 

largest category of cases which are typically disposed of by short memoranda, often relying on a 

single precedent and/or a few sentences of discussion. It is relatively rare that an administrative 

agency appeal ofl11e kind heard in the D.C. Circuit, certainly not a rulemaking, could be treated 

in that fashion, in large part due to the several levels ofintemal review within the government 

before an agency can go to court. Also to be noted is that a single massive consolidated appeal in 

an agency case combining the separate appeals of many organizations and parties will be counted 

statistically as one appeal even though reading, reviewing and considering the. separate 

arguments of many appellants may take widely disproportionate amounts of time. About 22% of 

D.C. Circuit appeals in 20] 3 terminated on the merits were consolidated cases, a vastly greater 

number than in other circuits. 

But it is undoubtedly the nature oftlle agency appeal cases, especially the rulemakings, . 

that set the D.C. Circuit apart. Agency appeal cases deeply impact every aspect of Americans' 

lives, the air they breathe, the water they drink, the safety of their workplace, the health care they 

receive, the security of their investments, the competitive pricing of the goods they buy. These 

complex regulations which undergird every major government regulatory progranl-fegulations 

which often consume hundreds of triple-columned, single-spaced Federal Register pages -if 

challenged and the major ones usually are-almost inevitably pass through the D.C. Circuit's 

2 
13 

portaL And because these rules come directly to the appeals court, its judges must do their legal 

evaluations from scratch without ihe benefit oflower court's findings available in non-agency 

appeals. TItis kind of review takes time. 111eir complexity is of two dimensions-lmderstanding 

the underlying factual situations giving rise to the disputes which can be scientific, technological, 

industrial and often obtuse to non-experts and assessing the legal questions arising from the 

precepts of administrative law which themselves are often versed in general terms like 

"preponderance ofthe evidcnce", "snbstantial evidence", "due deferencc", "in the public 

interest" and must be applied to those factual situations. It is also of moment that the D.C. Circuit 

is the court oflast resort in such cases except for those few that the Supreme Court elects to hear. 

In the past the High Court has steered clear of the vast bulk of the monstrous regulatory reviews. 

But when it does take agcncycases, not surprisingly it takes more of them from the D.C. Circuit 

than from allY other. It thus behooves the Circuit judges to do their important work painstakingly 

and fastidiously since in the final analysis they are responsible for the major part ofthe 

develop11.lcnt of the body of administrative law that guides the regulatory governance of the 

nation. Thus it is the D.C. Circuit that will hear the inevitable challenges to the Affordable Care 

Act's implementing regulations and to the Dodd-Frank Financial Services regulations. Indeed 

Chief Justice Roberts in his 2006 article acknowledged "the D.C. Circuit's unique character, as a 

court with special responsibility to review legal challenges to the conduct of the national 

government. ... " It goes without saying that to perform that special responsibility the court needs 

sufficient time and resources; according to Professor John Golden who studied the Circuit's 

history, "When the D.C. Circuit addresses questions such as the constitutionality oflegislative 

vetoes of agency rulemaking or agency rules of national scope, such as setting national ambient 

quality standards the significance for policymakers and memhers of the general public is plain". 

The D.C. Circuit has a separate complex litigation track for hearing a handful of the most 

time-consuming and c.omplex of these regulatory cases; five such are scheduled for the coming 

year. Neither the Chief Judge nor senior judges customarily sit on these cases (only one senior 

judge currently has). One example of such a case is Sierra Club v. Castle, 657 F2d. 298 (1981) in 

which I "'Iote the opinion. It dealt with "the extent to which new coal-fired steam generators that 

produce electricity must control their emissions of sulfur dioxide and particulate matter into the 

air". The Petitioners in the appeal (consolidated from 7 separate cases) all filed separate brieis 

totaling 760 pages setting forth varied argumcnts and interests. They included the Appalachian 
14 

Power Company, the Sierra Club, the Environmental Defense Fund, California Air Resources 

Board; the Intervenors included the National Coal Association and the Missouri Association of 

Municipal Utilities; the Respondent was the Enviromnental Protection Agency assisted by the 

Department of Justice. Oral argument consumed days and involved many advocates. Tbe 

environmental groups thought the EPA regulations too lax, the utilities thougbt them too 

rigorous. The effects of coal-burning power plants on public health and their importance to our 

economy were pitted against each other. The Joint Appendix totaled 5600 pages. EPA's 

explanation of the Rule in the Federal Register took up 43 triple columns of singlci spaced type. 

The rule had been several years in the making inside EPA and later undergoing White House 

review. Our review at the Circuit level encompassed mnuerous novel procedural issues with 

serious implications for agency informal rulemaking as well as substantive challenges, 

culminating in a 227 page slip opinion (with a 26 page appendix of charts) issued within 7 

months of argument. While it was being deliberated and drafted, life went on in the Circuit and 

our panel judges had to maintain their normal schedule of other cases. 

Cases accorded special complex schedule treatment as well as other agency cases on the 

regular calendar, likewise entailing issues of enormous national import and likewise extremely 

time consuming are, if anything, more typical of the D.C. Circuit's docket now than during my 

tenure. A prime example is the area of climate control. The D.C. Circuit has exclusive 

jurisdiction to hear challenges to national regulations promulgated under several major 

environmental statutes, including notably the Clean Air Act. A 2008 study prepared by thenchai.r of the House Energy & Commerce Committee, Henry Waxman, reported that between 

2002 and 2008, the D.C. Circuit decided 94 cases involving challenges to EPA decisions 

implementing the Clean Air Act alone. During subsequent years, the Circuit has reviewed a 

continuing stream of highly significant and complex Clean Air Act regulatory decisions by the 

cnrrent administration including an August 20,2013 ruling on sewage sludge incinerator 

standards, a July 12,2013 ruling on ethanol and other non-fossil-fuel carbon dioxide sources, a 

January 4,2013 ruling on two EPA regulations concerning airborne particulate matter, and a 

June 2012 decision (now on review before the Supreme Court) striking down EPA's "good 

neighbor rule" regulating individual states' contributions to air pollution levels in neighboring 

downwind states. 

4 
15 

TIle environmental area's intimate relationship to the Circuit is paralleled by other 

agencies such as communications (FCC) and energy (FERC). Mid-2013 figures show that 68% 

of the Court's consolidated cases terminated on the merits involved agency rulcmakings. (Tables 

B-3 md S-1). 

Finally, in the interests of brevity, I will only mention the extraordinary prominence of 

the Circuit in constitutional as well as regulatory jurisprudence, setting the stage for the Supreme 

Court on such issues as executive privilege, attorney client privilege for government lawyers, lhe 

survival of that privilege after death, the application of the recess clause to executive 

appointments, First Amendment rights to demonstrate in front of embassies, the application of 

constitutional guarantees to "enemy combatants" (all appeals from habeas corpus petitions by 

Gualltanamo detainees and from military commission convictions are heard exclusively by the 

D.C. Circuit). None of these cases are "average" or "typical" fol' federal courts. 

In sum it seems highly relevant to consider seriously the kinds of cases the D.C. Circuit 

hears with atypical frequency when deciding on its special judicial needs. 

5 
16 

STATEMENT OF HONORABLE TIMOTHY M. TYMKOVICH 

CHAIR, COMMITTEE ON JUDICIAL RESOURCES OF TIlE 

JUDICIAL CONFERENCE OF THE UNITED STATES 

BEFORE THE SUBCOMMITTEE ON 

BANKRUPTCY AND THE COURTS 

OF THE 

COMMITTEE ON THE JUDICIARY OF THE 

UNITlm STATES SENATE 

September 10, 2013 

Chairman Coons, Ranking Member Sessions and members of the subcommittee, I 

am Timothy Tymkovich, Circuit Judge for the Tenth Circuit Court of Appeals and Chair 

of the Judicial Conference Committee on Judicial Resources, and I appreciate your 

invitation to appear today to discuss the Article III judgeship needs of the Federal 

Judiciary. 

The Judicial Resources Committee of the Judicial Conference of the United States 

is responsible for all issues involving lruman resource administration, including the need 

for Article UIjudges and support staff in the U.S. courts of appeals and district courts. 

My testimony today has two purposes: to provide infonnation about (1) the judgeship 

needs of the district and appellate courts, and (2) the process by which the Judicial 

Conference detennines those needs. 

It has been over two decades since Congress passed a comprehensive judgeship 

bill. In that 1990 legislation, Congress created 85 additional judgeships reflecting an 11 % 

increase in total authorized Article III judgeships. As I will discuss later, Congress hllS 
17 

also provided some relief in district courts with exceptional needs, primarily along the 

border, in the late 1990& and early 2000s. 

But caseloads have continued to rise. To enable the Judiciary to continue serving 

litigants efficiently and effectively, the judicial workforce must be expanded. I would 

therefore like to thank Senator Coons and Senator Lcahy for introducing S. 1385, the 

Federal Judgeship Act of 20 13, which reflects all of the Judicial Conference's Article III 

judgeship recommendations transmitted to Congress earlier this year. While the Judicial 

Conference feels strongly that each of these judgeship recommendations is justified due 

to the growing workload in these courts, it is cognizant of the current economic realities 

and the prospective cost associated with the proposal. It therefore acknowledges that it 

may not be possible for all of these judgeships to be authorized in a single legislative 

vehicle and that prioritization within the recommendations may be necessary. 

Every other year, the Conference conducts a survey of the judgeship needs of the 

U.S. courts of appeals and U.S. district courts. The latest survey was completed in March 

2013. Consistent with the findings of that survey and the deliberations of my Committee, 

the Conference recommended that Congress establish 91 new judgeships io the courts of 

appeals and district courts. The Conference also recommended that eight existing 

temporary district court judgeships be converted to pemmnent status. Appendix 1 

contains the specific recommendation as to each court. All of the judgeships 

recommended by the Conference would be authorized by S. 1385. For many of the 

2 
18 

courts, the recommendations reflect needs that have existed since the last omnibus 

judgeship bill was enacted in 1990. 

Survey Process 

In developing these recommendations, the Judicial Conference (through its 

committee structure) uses a fmmal process to review and evaluate Article III judgeship 

needs. The Committee on Judicial Resources and its SubCOlmnittee on Judicial Statistics 

conduct these reviews, but the Conference makes the fmal recommendations on judgeship 

needs. Before II judgeship recommendation is transmitted to Congress, it undergoes 

careful consideration and review at six levels within the Judiciary, beginning with the 

judges of the particular court making a request. If the court does not make a request, the 

Conference does not consider n;commending a judgeship for that court. Next, the 

Subcommittee on Judicial Statistics conducts a preliminary review of the request and 

either affirms the court's request or offers its own reduced recommendation; based on the 

court's workload and other stated contributing factors. Once this review is complete, the 

Subcommittee's recommendation and the court's initial request are forwarded to the 

judicial council of the circuit in which the court is located. 

Upon completion of the council's review, the Subcommittee on Judicial Statistics 

conducts a further and final review of the request and/or reeonnnendation, reconciling 

any differenees that may still exist. The Subcommittee then submits the recommendation 

to the full Committee on Judicial Resources. Finally, the Judicial Conference considers 

3 
19 

the full Committee's final product. In the course of the 2013 survey, the courts requested 

94 additional judgeships, permanent and temporary. Our review procedw-e reduced the 

number of recommended additional judgeships to 91. 

During each judgeship survey, requests from courts recommended for additional 

judgeships in the previous survey (two years prior) are re-considered, taking into accmmt 

such factors as the most current caseload data, relevant trends and changes in the 

availability of judicial resources. In some instances, tills review prompts adjustments to 

previous recommendations. 

Judicial Conference Standards 

The recommendations developed through the review process described above (and 

in more detail in Appendix 2) are based in large part on a numerical caseload standard. 

These standards are not by themselves fully indicative of each court's needs. They 

represent the caseload at which the Conference begins to consider requests for additional 

judgeships - the starting point in the process, not the end point. 

Caseload statistics must be considered and weighed with other court-specific 

infonnation to arrive at a sound measurement of each court's judgeship needs. 

Circumstances that are unique, transitory, or ambiguous are carefully considered so as not 

to result in an overstatement or understatement of actual burdens. The Conference 

process therefore takes into account additional factors, including: 

4 
20 

011 the number of senior judges available to a specific court, their ages, and 

levels of activity; 

.. available magistrate judge assistance; 

.. geographical factors, such as the size of the district or circuit and the 

number of places of holding court; 

II unusual caseload complexity; 

011 temporary or prolonged caseload increases or decreases; 

«I the use of visiting judges; and 

011 any other factors noted by individual courts (or identified by the Statistics 

Subcommittee) as having an impact on the need for additional judicial 

resources. (For example, the presence of high profile financial fraud and 

bribery prosecutions, the number of multiple defendant cases, and the need 

to use court interpreters in a high percentage of criminal proceedings). 

Courts requesting additional judgeships are specifically asked about their efforts to 

make use of all available resources including their use of senior and magistrate judges, 

intercircuit and intracircuit assignment of judges to provide short-term relief, and 

alternative dispute resolution. 

Distript Court Analysis 

Reviewing the judgeship needs of the dislrict courts, the Conference, after 

accounting for the additional judgeship(s) requested by the court, initially applies a 

5 
21 

standard of 430 weighted filings per judgeship to gauge the impact on the district. 

Weighted filings statistics account for the different amounts of time district judges require 

to resolve various types of criminal and civil cases. Applying this standard to the current 

recommendations, the workload exceeds 500 weighted filings per judgeship in 28 of the 

32 district courts in which the Conference is recommending either an additional judgeship 

or conversion of an existing temporary judgeship to permanent status; 17 courts exceeded 

600 weighted filings per judgeship. 

AmJellate Cowl Analysis 

In the courts of appeals, the Conference, again after accounting for the additional 

judgeship(s) requested by the circuit cowl, uses a standard of 500 adjusted filings per 

panel as its starting point. Adjusted filings are calculated by removing reopened appeals 

and counting original pro se appeals as one-third of a case.· In each appellate cowl in 

which the Conference is recommending additional judgeships, the caseload levels 

substantially exceed the standard, averaging over 700 adjusted filings per paneL Other 

factors bearing on workload have been closely considered as well. For example, the 

circuits' individual rules regarding how cases are designated for oral argument affect the 

percentage of cases that receive oral argument in each circuit, which also impacts the 

workload. 

6 
22 

In short, caseload statistics furnish the threshold for consideration, but the process 

entails a critical scrutiny of the caseloads in Ugh! of many other considerations and 

variables, all of which are considered together. 

Caseload Information 

National data provide general infonnation about the changing volume of the 

courts' business. Since the last comprehensive judgeship bill for Article III courts was 

enacted in 1990, case filings have risen significantly. From fiscal year 1991 to fiscal year 

2012 filings in the district courts have risen 39 percent, with civil filings increasing by 32 

percent and crimina! felony defendants by 67 percent. Between 1999 and 2002, Congress 

created 34 additional judgeships in the district courts in response to particular problems in 

certain districts. Even with these additional resources, however, the number of weighted 

filings per judgeship nationwide in district courts has reached 520--clearly well above the 

Judicial Conference standard for considering additional judgeships. 

Over the same time, cowt of appeals filings have grown by 34 percent, but, unlike 

the district courts, no judgeships have been added to the courts of appeals since 1990. As 

a result, the national average caseload per three-judge panel has reached 1,033. Were it 

not for the assistance provided by senior and visiting judges, the appellate courts would 

not have been able to keep pace. 

The judgeship needs of a particular court, howevcr, require a more focused 

analysis of court-specific data. Indeed, in districts where the Conference has 

recommended additional judgeship resources, the need is much more dramatic compared 

to the national figures. As stated previously, there are 28 district courts with caseloads 

exceeding 500 per judgeship, and more than half of these courts have cascloads in excess 

7 
23 

of 600 per judgeship. Overall, the average weighted filings for courts needing additional 

judgeships is 628, far exceeding the Conference standard of 430 for additional 

judgeships. Appendix 3 provides a more detailed description of the most significant 

changes in the case!oad since 1990. 

The lack of additional judgeships combined with the growth in caseload has 

created enormous difficulties for many courts across the nation, but it has reached urgent 

levels in five district courts that are struggling with extraordinarily high workloads, with 

700 or more weighted filings per authorized judgeship, averaged over a three-year period. 

The severity of conditions in the Eastern District of California, the Eastern District of 

Texas, the Western District of Texas, the District of Arizona, and the District of Delaware 

requires immediate action. The Conference urges Congress to establish new judgeships 

in those districts as soon as possible. 

The Conference is also extremely concerned about the eight existing temporary 

judgeships which have been recommended for conversion to pennanent status. All eight 

of these judgeships will lapse before the end of fiscal year 2014, and without reauthorization, these on-hoard resources will be lost, further damaging the Federal 

Judiciary by diminishing already scarce judicial resources in these districts. 

The Conference appreciates the efforts that the Senate, and in particular this 

Committee, has made to authorize some of these critically needed judgeships. 

Specifically, the Conference supports all of the judgeships included in S. 744, the Border 

Enforcement, Economic Opportunity, and Immigration Reform Act, passed by the Senate 

earlier this year. That bill would authorize eight new district court judgeships and convert 

two temporary district court judgeships to permanent statos in Southwest border districts 

8 
24 

where the caseload, already at extraordinatily high levels, would be further impacted by 

the bill's immigration enforcement measures. 

Conclusion 

Over the last 20 years, the Judicial Conference has developed, adjusted, and 

refined the process for evaluating and recommending judgeship needs in response to both 

judiciary and congressional concerns. The Conference does not recommend, or wish, 

indefinite growth in the number of judges. It recognizes that growth in the Judiciary must 

be carefully limited to the number of new judgeships that are necessary to exercise federal 

court jurisdiction. 1 The Conference attempts to balance the need to control growth and 

the need to seek resources that are appropriate to the Judiciary's caseload. In an effort to 

implement that policy, we have requested far fewer judgeships than the caseload increases 

and other factors would suggest are now required. Furthennore, the Conference, mindful 

of the dire fiscal realities that our federal government is currently facing, acknowledge, 

the possibility that not allnf the requested judgeships may be created and that some 

prioritization may have to occur. 

Again, the Judicial Conference ohhe United States is grateful for the introduction 

of S. 1385, the Federal Judgeship Act of 2013, which reflects the Article III judgeship 

recommendations of the Judicial Conference of the United States. Thank you for the 

opportunity to appear today atld for your continued support of the Federal Judiciary. 

would be happy to answer any questions the Subcommittee may have. 

'JCUS-SEP 93, p.51; JCUS-SFP 95, p.44. 

9 
25 

Appendix 1 

TABLE I. ADDITIONAL JUDGESHIPS OR CONVERSION OF EXISTING JUDGESHIPS RECOMMENDED BY THE 

JUDICIAL CONfERENCE 

2013 

AD.!HSTED'l'll.1NOS l'ER 

AUTHORIZED JUDICIAL CONfERENCE PANELIWEIGHTED FILINGS PER 

GIRCUrfiDlSTRICT -, JUDGESHIPS RECOMMENPATION AUTHORIZED,JllOQESHIP 

U.S, COURTS OF APPEALS SF,IT ADJUSTED FILINGS 

NINTH 29 4P, IT 843 

'SIXTH 16 IF 593 

U,S, DISTRICT COURTS 651'. lOT, IITII' WEIGHTED FILINGS 

DELAWARE 4 IP 1,165 

CALIfORNIA, EASTERN 6 6P, IT 1,132 

TEXAS, EASTERN 8 2P, TIP 1,042 

TEXAS, WESTERN 13 4P, iT 752 

ARIZONA 13 6P,4T, TIP 712 

CALIFORNIA, CENTRAL 28 lOP,2T, TIP 691 

CALIFORNIA, NORTHERN 14 SF, IT 675 

COLORADO 7 2P 663 

WASIllNGTON, WESTERN 7 2P 650 

INDiANA, SOUTHERN 5 lP 642 

FLORIDA, SOUTHERN IS 3P, TIP 639 

FLORIDA, MIDDLE 15 SP, iT 634 

HEW YORK, WESTERN 4 iP 626 

FLORIDA, NORTHERN 4 iP' 619 

WISCONSIN, WESTERlN 2 iP 6i3 

ALABAMA, NORTHERN 8 TIP 613 

CALIFORNIA, SOUTHERN i3 3P, IT 602 

NEW YORK, EASTERN 15 zp 596 

NEWJIlRSEY 17 2P, IT 587 

IDAllO 2 iP 517 

TEXAS, SOUTHERN 19 2P 568 

MINNESOTA 7 IP, IT 556 

MISSOURI, WESTERN 6 iT 5H 

GEORGIA, NORTHERN II iP, IT 5.52 

NEVADA 7 11', IT 547 

OREGON 6 iT 533 

NEWMEXICAl 7 IP, TIP 527 

NEW YOR,K, SOUTllERN 28 iP,iT 525 

TENNESSEE, MIDDLE 4 IT 497 

VIRGINIA, EASTERN 11 iT 4'12 

KANSAS' 6 TIP 47[ 

MISSOURI EASTERN 8 TIP 424 

p ~ PERMANENT; T ~ TEMPORARY; TIP ~ TEMPORARY MADE PERMANENT 

,., If the t.r:mporary judgeship hlpses, the recommendation is amended to one additional permanent judgeship. 
26 

Appendix 2 

J1TnGESHll' RECOMMENDATIONS OF THE JUDICIAL CONFERENCE 

OF THE UNITED STATES 

JUDlCL4L CONFERENCE PROCESS 

ln developing judgeship recommendations for considemtion by Congress, the Judicial 

Conference, through it~ committee stnlctnre) uses, a formal smvey process to review and evaluate 

Article III judgeship needs, regularly and systematically. The nationwide surveys of judgeship 

needs "fe ba,ed on established criteria related to the workload ofthejudicial officers. These 

reviews are conducted biennially by Ibe Committee on Judicial ResollIc., (Committee), wilb 

final recommendations on judgeship needs approved by the Judicial Conference. 

Tbe recommendations are based onjustificutions submitted by each collI!, Ibe 

recommendations of the judicial councils of Ibe circuits, and IlIl evalWluon of the requests hy the 

Committee using the most recent caseload data. During each judgeship survey, the Judicial 

Conference reconsiders prior, but still pending, recommendations based on more recent caseload 

data and makes .djustmeuts for any court where the workload nO longer supports the need for 

additio1llll judgeships. The Judicial Conference has also implemented a process for evaluating 

situations where it may be appropriate to recommend that certain positions in district courts be 

eliminated or left vacant when the workload does not support a continuing need for the judicial 

officer resotrrce. 

In general, the 9lU"Vey process is very similar for both the courts of appeals and the 

district collI!s. First, the courts submit ~ detailed jUstification to the Committee's Subconunittee 

on Judicial Statistics (Subcommittee). The Subcommittee reviews and evaluates the request and 

prepares a preliminary recommendation which is given to the courts and the appropriate circuit 

judicial councils for their recol1unendations. More recent caseload data are used to evaluate 

responses from the judicial council und the collI!, if a response is submitted, as well a8 to prepare 

recommendation. for approval by the Committee. The Committee's recommendations are then 

provided to the Judicial Conference for finnl approval. 
27 

COURT OF APPEALS REVIEWS 

At its September 1996 meeting, On the recommendation ofthe Judicial Resources 

Committee, which consulted with the c.hief circuit judges, the Judicial Conference unanimously 

approved a new judgeship survey process for the courts of appeals. Because of the unique nature 

of each aftne courts of appeals, the Judicial Conference process involves consideration of local 

circumstances that may have an impact on judgeship needs. In developing recommendations for 

court, of appeals, the Committee on Judicial Resources takes the following general approach: 

A. Courts are asked to submit requests for addition. I judgeships provided that at Ie ... ! a 

majority ofthe active members of the court have approved submission oftha request; no 

recommendations for additional judgeships are made without a request from a majority of 

the members of the court. 

B. Each court 'requesting additional judgeships is asked to provide a complete justification 

for the request, including the potential impact on its own court and the <listrict courts 

within the circuit of not getting the addilion.ljudgeships. In any instance in whic,h a 

court's request cannot he supported through the standards noted below, the court is 

requested to provide supporting justification as to why the standard should not apply 10 

its request. 

C. The Committee considers various fuctors in evaluating judgeship reques"" including. 

statistical gui<le based ona standard of500 filings (with removal of reinstated cases) per 

p.nel and with pro se appeals weighted us one third of a case. TIlis caseload level is used 

only as a guideline and not used to determine tile number of additional judgeships to 

recommend. The Committee docs no! attempt to bring eaeh court in line with this 

standard. 

The process allows for discretion to consider any special circumstances applicable to 

specific courrs and recognizes that court culture and court opinion are important ingredients in 

any process of evaluation. The opinion at. court as to the appropriate number of judgeship', 

especially the maximum number, plays avital role in the evaluation process, and there is 

recognition of the need for flexibility 10 organize work in a manner which best suits the culture 

of the court and satisfies the needs of the region served. 
28 

DISTRICT COURT REVIEWS 

In an ongoing effort to control growth, in 1993, the Judicial Conference adopted new, 

more conservative criteria to evaluate requests for additional district judgeships, including an 

increase in the benchmark caseload standard from 400 to 430 weighted cases per judgeship. 

Although numerous foctors are considered in looking at requests for additional judgeships, the 

primary factor for evaluating the need for additional district judgeships is the level of weighted 

filings. Specifically, the Committee uses a case weighting system' designed to measUre judicial 

casoload, along with a v""ely of other f.ctors, to assess judgeship needs, The Judicial 

Conference and its Committee review all available infonnation on the workload of the courts and 

supporting moterial provided by the individual couns and judicial councils of the circuits. The 

Committee takes the following approach in developing recommendations ~or additional district 

judgeships: 

A. In 2004, the Subcommittee amended the struting point for considering requests from 

cUITenl weighted filings above 430 per judgeship to weighted filings in excess of 430 per 

judgeship with the additionaijudgeships requested. For court~ with fewer than ltv. 

authorized judgesbips, t.'lc addition of a judgeship wm,[d often reduce the cascload per 

judgeship substantially below the 430 levD!. Thus, for small courts Ille 430 per judgeship 

standard waH replaced with. standard of current weighted filings above 500 per 

judgeship, These caseload levels are used only as a guideline and a factor to determine 

the nmnber of additional judgeships to recommend. The Committee doe. not attempt to 

bring each court in line with this standard, 

B. The caseload of the individual courts is reviewed tc determine iflhere are any faclol'll 

present that create Ii temporary situation that would not provide justification for 

additional judgeships. Other metors are also considered that would make a court's 

situation 1m.ique and provide support either for or- against a reconunendation for 

additional judgeships. 

C. The Committee re~iews the requesting court's use of resources and other strategies for 

handling judicial workload, including a careful review of each court', use of seruor 

judges, magistrate judges, ruId altemative dispute resolution, in addition to a review of 

each court's use of and willingness to use visiting judges. These factors and geographic 

considerations are used in conjunction. with the caseload information to decide if 

additionaljudgeshlps Bre appropriate, and to am ve at the number of additional 

judgeships to recommend for e<;tch court. 

D. The Committee recommends temporary judgeships in all situations where Ih. ca,eload 

level JustifYing additional judgeships occurred only in the most recent years, or when tbe 

addition of a judgeship would place" court's c",cload close to the guideline of 430 

I "Weighted filings" is a mathematical adjustment of filings, based on the nature of cases and the expected 

amollnt of judge time require.d for disposition. For example, in the weignted filing.~ system for district COllrts, e<lch 

civil antitrust case is counted as 3.45 cases while each homicide defendant is CCluntcd as 1.99 weighted cases. The 

weighting factors were updated. by fue Federal Juciici"j Center in June 2004 based on criminal defendant-.s and civil 

cases closed in calcndur yeflf 2002, 
29 

weighted filings per judgeship. The Committee also recommends at least a portion of 

.dditional judgeships as temporary when recommending a large number of additional 

judgeships for a particular court. In some instances the Committee also considers the 

pending cascload per jadgeship a8 an additional factor supporting an additional 

tomporary judgeship. 

4 
30 

Appendix 3 

CASELOAD CHANGES SINCE LAST JUDGESHIP BILL 

A total of 34 additional district court judgeships have been created since 1991, but six temporary 

judgeships have lapsed. TIlese changes have resulted in a four percent increase in the overall 

number of authorized district court judgeships; court of appeals judgeships have not increased. 

Since the last comprehensive judgeship bill was enacted for the U.S. courts of appeals and 

district courts, the numbers of cases filed in those courts have grown by 34 percent and 39 

percent, respectively. Specific categories of cases have seen dramatic changes over the past two 

decades. Following is a summary of the most significant cbanges. 

U.S. COURTS OF APPEALS (Change in authorized Judgeships.' 0) 

.. The total nwnber of appeals filed bas grown by 34 percent, nearly \5,000 cnses, since 

1991. 

.. Appeals of criminal cases have increased 33 percellt since 1991. 

.. The most dramatic growth in criminal appeals has been in immigration appeals, which 

increased from 145 in 1991 to 1,616 in2012. 

.. Appeals of decisions in civil cases from the district courts have risen eight percent since 

1991. 

• The mo st dramatic gTO\'vth in civil appeals has been in prisoner appeals where case filings 

are up 37 percent since 1991. 

.. Appeals involving administrative agenayd.cillions have fluctuated over tbe years, but 

have neruly tripled, growing from 2,859 in 1991 to 8,391 in 2012. The increases resulted 

primarily from appeals of decisions by the Bom~d of lm.'lligrntion Appeals, with the 

largest increases occurring in the Second and Ninth Circuits. 

to Original proceedings have grown from 609 in 1991 to 4,265 in 2012, partially as a result 

of the Antiterrorism and Effective Death Penalty Aet which requires pllsoneIS to seek 

permission from court. of appeals for certain petitions. Although enacted in April 1996, 

data for these and certain pro se mandamus: proceedings were not reported until October 

1998. 

U.S. DISTRICT COURTS (Change in authorizedjudgeships: +4%) 

.. Toml fIlings have grown by over 100,000 cases, a 39 percent increase since 1991. 

" The civil caseload has fluctuated over the last 21 years, but has increased 32 percent 

overall since 1991. 
31 

o The most dramatic growth tn civil tilings occurred in cases related to 

personal injury product liability which have grown from 10,952 filings in 

1991 to 43,083 in 2012, due to a large number of asbestos filings and an 

increase ht multi-district litigation cases. 

o Civil rights filings increased steadily after the Civil Rights Act of 1990 

was enacted. Although eus.s have declined from their peak in 1997, the 

number of civil rights filings was 90 percent above the 1991 level. 

o Protected property rights cases more than dOUbled between 1991 and 

2012. Trademark, patent, and copyright filings all showed growth since 

1991, although the largest increase occurred in patent filings, which more 

than quad(Upled. 

o The number of social security cases filed in 2012 rose to more than twice 

the number filed in 1991. 

o Prisoner petitions increased 26 percent between 1991 and 2012, due to 

significantly higher numbers of motions to vacate sentence filings Illld 

habeas corpus petitions. 

o Fair De!:>! Collection Practices Aet cases were first categorized separately in 2008. 

These filings increased from 4,239 in 2008 to 9,320 cases in 2012. 

o forecloslire filings nearly quadrupled between 2008 and 2012, reversing a steady 

decline between 1991 and 2008. 

• The number of criminal felony defendants has increased 67 percent since 1991. 

o The largest increase, by far, has been in immigration offenses which rose 

from 2,448 in 1991 to 25,184 in 2012. 

o Defendants charged with firearms offenses mo,e than doubled between 

199] and 2012, an increase of over 4,500 cases. 

o The number of drug-related defendants in 2012 was 26 percent above the 

number filed in 1991. 

o The number offraud defendants fluctuated between 1991and 2012, but 

remained 24 percent above the number filed in 1991. 

o Defendants charged with drug, immigration, firearms, and fraud offenses 

wmprised 85 percent of all felony defendants in 2012. 

o Sex offense defendants nearly doubled between 2005 and 2012. 

2 
32 

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 
33 

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. 
34 

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? 
35 

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 nomina-
36 

tion 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. 
37 

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 secondguessing. 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 al-
38 

lowed 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:] 
39 

Hearing before the 

U.S. House of Representatives 

Committee on the Judiciary 

"ARE MORE JUDGES AL'vVA YS TIlE ANSWER?" 

Odober 2.9. 2013 

Statement of Amb. C. Boyden Gray 

1 am honored to have been invited to testify belore the Judiciary Committee on the 

suhject offeueral juugeships. Having clerked for ChiefJustice Earl \iVarren early in my career, 

workeu on judicial selection in the \iVhite House, anu practiceu in the leueral courts thrOLlghOLlt 

uecades of private practice, I am keenly aware of the challenges lacing the lederaljudiciary and 

the importance to the nation of enabling our courts to operate to their maximum potential. In 

particul<:lr, my work as a regulatory hl\vycr both in the government (in the vVhitc HOllse and in 

Brussels) and in private practice has frequently brought me into contact with the judges and 

uecisions of the United States Court of Appeals for the nc. Circuit. Though I don't always 

agree with its opinions, my appreciation for that court and its unique character anu uocket is 

unflagging. 

It was therefore with some concern that I learned of President Obama's suduen decision 

in his second term to simultaneously nominate three new judges to the D.C. Circuit 1 If those 

nominations were to he confirmed, President Ohama would inflate the court to 1.'lH% of its 

current roster of active judges. Such a radical remake of the court might be justified if the 

court's workload were increasing, but the opposite is true. I can only conclude that President 

Ohama, who did not pay much attention in his first term to the nc. Circuit, has made tilting 

the court's political balance a high priority lor his seconu term. 

1 Sf'£' PrC'ss RC'}e;1sC', ReJl18.rks by the' President on the Nominations to the U.S. Court of AppC'8.1s for the Di~trict of 

Columbia Circuit. June 1.,2013, available at http://\,,\,,v''.whitehollse.goY/the-press-office/g013/06/01./re111ar1l:spresident-nominations-us-court-appeals-district-columbia-circuit. 
40 

It's an unfortunate strategy for several reasons. First, the D.C Circuit (smaller than all 

but one of its twelve sister circuits) doesn't need any more j Lldges. In response to a sLlrvey by 

Senator Grassley, one judge on the court wrote that "[iJf any more judges were added now, 

there wouldn't be enough work to go around."" Another concluded that 

the Court does not need additional judges t(lr several reasons. For starters, OLlr 

docket has been stable or decreasing, as the public record manifests. Similarly, 

as the public record also retlects, each judge's work product has decreased from 

thirty-some opinions each year in the 1000s, to twenty-some, and even fewer 

than twenty, opinions each year since then.' 

These statements by sitting D.C. Circuit judges are confirmed by statistics provided by the 

court's Chief Judge, Merrick Garland, who was appointed to the court by President Clinton. 

Over the past decade the number of argued cases per active judge has fallen, and the court's six 

senior judges do more to lighten that already light burden than their cOLlllterparts on other 

courts, who tend to be older and hear fewer cases.· 

The President's recent nomination spree risks politicizing an institLltion that is-and 

should be-above politics. The D.C Circuit hears some of the most important and least 

gh.lmorous G.lSCS in the fcucr<JI judiciary.b Tn audition to the ordinary civil and crimin<:Jl appc<:JIs 

it hears lImn decisions of the district court, the D.C Circuit more than any other court 

considers petitions for review of federal agency actions-administrative rules and orders that 

i PrC'ss Release, D.C C'ircllit C-Durt C8.seioad Doesn't :\{erit Filling Seats, Senator Chuck Gr8.ss]ey of Tm\'8, July 24, 

Q01.S, <1'Cai/ah/(' at http:/;\v\\'\v.gr8ssiey.sel1fltf'.gov/nf'\\;s/ Arti('If'.dnl~('ustomf'l_d8t;:lPagf'TD_l hOQ= 1(,016. 

~ Td. 

4 Td. ("An~ordillg to on(' of the judge'S on the conrt, the' ~('nior judges "\vill more than lili:C'ly ~('rv(' fi)J' anotiwl' decmi(' 

hased on tiwir r('sp('ctiv(' ages and Iwalth.' 1f Likewise, anotlwrjudge nokd that tlw D.C. Circuit has 'an 

extraordinary number of sitting senior judges (six) who are actually younger than the average age of U.S. senior 

juoges.' 1f Baseo on this, it is ckar that the senior judg'e~ on t1w COU1't a1'e contributing a significant amount of 

\01,'01'11. ano ,.yill contillllC' to do ~o for the f01'ese('ab](, future. They serve becall~e they \\'ant to. not because they 

have to. 

b Regarding the D.C. Circuit's unglamorous regulatory docket, Judge Henry Friendly famously remarli:ed, that the 

D.C. Circuit is a "court of special importtUlce for administrative law," and "has attracted-doublless 10 llie ddzghl of 

the other rirruits--the largest share of environmentallitig'ation and r(,view of orders of the Federal Pown 

Commission fixing natural gas rates." Henry J. Friendly, Some Kind ofHearillg, 123 C. PA. L. REV. UZ67, 1311 

(197:» (emphasis added). 

2 
41 

affect the lives and businesses of all Americans. To its great credit, the D.C. Circuit has, for the 

past two decades at least, fulfilled this important role thoughtfLllly, qLlietly, and withOLlt 

political rancor-in short, with collegiality, an institutional trait that manifests itself, D.C. 

Circuit Judge Harry Edwards has written, when "judges have a common interest, as memhers 

ofthejudiciary, in getting the law right, and. as a result .. are willing to listen, persLtade, 

and be persuaded, all in an atmosphere of civility and respect.'" Thus, "collegiality mitigates 

judges' ideological preferences and enahles us to find common ground and reach hetter 

decisions. In other words, the more collegial the court, the more likely it is that the cases that 

come before it will be determined on their legal merit.s.'" The collection of qualities that give 

rise to collegiality on an appellate court may he difficult to define, and its precise effects on 

decision making may be hard to qLlantify, bLltjudges themselves universally acknowledge 

collegiality to be an important ingredient in the judicial process. 

This has been stressed by the Fourth Circuit's Judge \Vilkinson, who noted that 

although ,,[cJollegiality is one ofthose soft, intangible words which may ring hollow upon the 

congressional ear," .. [jJudges ... have a deep conviction that a collegial court does a hetter 

job."S 

Collegiality of this sort does not happen by accident; sadly it does not characterize all of 

our courts of appeals. Indeed, it has not always characterized the D.C. Circuit, which Justice 

G Harry T. Erhvanh. TIJf' FJj'Pds 0fCollegiali~v on .flldirial DecisioJ! TllakiJlg. 151 P. PA. L. REV. 10,')9, 1f)'-I<5 ('JO(),,)) 

7 [d. 8t If),-!<()-'-i<l 

"J. llarvie \Vilh.insonlll, 43 ErvIOfiY L.J. 114<7. 1173 (199-1<) 

(citing' .TOil O. Nev'vllHl1l, 1:-l.'-l Jl'DIC'ATlTRE 1 :-)7,1:-l:-l (19~m); 

Gerald Bard Cljoflat . .!.l1ore Judges, J., July 1993, at 70, 70); see alw Responding to the Gro'wing J..Veed 

Jm' Federal Judgeships: The Fednal Judgeship Act of2009 (Sept. 30, 20(0) (statelIlent of the lIon. Gerald Bard Tjoflat, 

Circuit Junge, l ~niterl St8.tes Court of ApI)(,8.I~ for the Eleventh Circuit), at 4 ("Close interpel'Sol18.l relationships 

facilitate the creation of higher-quality judicial opinions. Those relationships also form the basis for interaction and 

continued functioning ,,,hen a court faces the most emotional and divisive issues oUhe day."). 
42 

Felix Frankfurter once called "a collectivity of fighting cats."" Judge Edwards, who was 

nominated to the court by President Carter in 1979 and confirmed in 1980, reports that in 

those days the court was divided into "ideological camps," and "judges of similar political 

persuasions too often sided with one another merely out of partisan loyalty, not on the 

merits of the case."l0 Judge Edwards reports that one liberal judge's first words to him were 

"Can I count on your vote?"11 

Not surprisingly, Judge Edwards lound that judges working in this atmosphere 

"hecome distrustful of one another's motivations; they arc less receptive to ideas ahout pending 

cases and to comments on circLtlating opinions; and they stLlbhornly cling to their first 

impressions of an issue"-all tendencies that "do damage to the rule oflaw."!Q 

Harry Edwards aSSllmed the D.C. Circuit's chief judgeship in 199.J< at a time when 

"collegiality was at a low point."!.' Ile led a reform of the court and its rules and procedures that 

prioritized collegiality.ll The cultural shilt that Judge Edwards brought about on the court has 

persisted through the intervening years thanks in large part to the Chief Judges who succeeded 

him in that role-Douglas Ginsburg, David Sentelle, and now Merrick Garland. Judge David 

Tatel, a Clinton appointee, said ofChiefJudge Sentelle, a Reagan appointee, that ,,[iJn his five 

years as our ChiefJLldge, Dave has protected OLlr prOLldly nurtLlred tradition of collegiality, 

c> .Tl<:FFKJ-:Y BKANJ)ON :\{OKKIS, C,\LlV1L) TO POISJ<: [,HI-<: SC,\Lt<:SOF ,TlISTICt<:: A HIS ['OK) OF THI-<: COlIK rs OF THI-' 

DIsmICTOF COLUrv'lBIA CIRCUIT 197 (2001) (quoting Letter from Felix Frankfurter to Philip 13. hurland, 

Prof('~sor, l ~niv('n,ity ofChic8.go Lmv School (19(-)2)), quoted in Fo"\'varos, supra note' O. 

10 Edwards, SIIj>1"il note G, at 1G-4,8. 

II Id. 

121d. at 161.0. 

13 Td. at 1 (-)(-)5. 

1+ Judicial Conf(,J'C'llc(' of the Second Circuit, Q+~; F.R.D. -4<92, ,,)(-j-4< (Q()06) (RB. Ginsburg . .T.) ("T nm give m, a bright 

example the Court of Appeals on \vhich 1 served for 13 years. the D.C. Circuit. ",'hich ",:as once a fairly divided 

circuit. No\vadays there's Larely ever a dissent. lIarry E:dwards. as Chief Judge, turned that court around. It is 

today a very collegial court."). Sf'e general~v A8ron Zelins1"y. "Collegiality . .Tung-ing-, 81ld the D.C. Circuit."' 

CUNCURlUNG OPI:"IO:"S (lVIay 13, ;2013), http://vii\'''''COncnrringopinions.com/archives/2013/0J/ collegialityjudging-and-the-d-c-circuit.html. 

4 
43 

navigating sometimes sensitive waters with a firm but gentle oar."15 Following Judge 

Edwards's lead, each successive chief judge made the collegiality of the court a priority. In a 

speech delivered in 2011 and published last year, Judge Ginsburg agreed that "the level of 

collegiality has increased steadily over the years and continues to be a robust and pleasant 

ieature of service on the court."lG 

The collegiality that the D.C. Circuit's judges-appointed by presidents of both 

parties-have labored so hard to achieve would be threatened if the President succeeds in his 

effort to force three unneededjudges through the confirmation process. First, judges who sense 

they are appointed to prop LIp the President's regulatory agenda, may be more likely to do so 

out of loyalty to the President who appointed them. In his early years on the court, Judge 

Edwards "witnessed occasions when ideology took over and effectively destroyed collegiality, 

because the confirmation process 'promoted' ideological commitment."I' As proponents of the 

nominations have pointed out, it is no accident that Obama's judicial nomination barrage 

followed his State of the Union promise that "if Congress won't act" on climate change, "1 

will." 16 And whereas "a single new judge has no real standing or authority to undo the norms of 

collegiality," three .iudges nominated contemporaneously with a single political agenda in mind 

may feel pressure to fillfill that agenda at the expense of the institution's collegial character, as 

j,S Judge Dnvicl S. Tatel, Remarks OJ) the OerasioJ) of the Porimit HaJJging('ennnoJJyjor the HOJJomhfe navid R. Sentl'ill' 

(Apr. 6" Q013), m;ailab[(, aL http://'V\vW.cOIll'Urrillgopinions.com/\vp-contellt/uploads/Q01S/05/Sentelle_PortraitRC'marks-l1 .pdf. 

16 11011. Douglas 11. Ginsburg, Hemar!rs [JPOIl Ufceivilll{ Ihe L{jdinu' .":,'ervi(-e..fiward C!f1he GeorgduwlI Federali. .4 ,)'o("i(:'~1' 

Chapter, 10 C;-('orgC't(HVn .T. of L. & Pub. Pol'y 1 (201 2). 

1'" Eo,\'aro~, supra note 0, at 1 677-7:-l; see also id. at 167.'-) eTn otlwr "Yords, if an appointee joins the court feeling 

committeo to the political party that ensured the appointnwnt, the jlldge'~ instinct may 1)(' to vote in a block '\vith 

other perceived conservatives or liberals. Even worse, a judge who has been put through an ideologically driven 

confirmation ordeal may take the bench feeling animosity tc)'\vard the party that attempted to torpeoo the 

appointment on ideolog'ical grounds."). 

lS Sp£' DOll~; T-i"endall & Simon T-,azanI~, RrokeJl ('irruit, THE E~VTL. FORlnvl ,'j6 (\-J ay/.Tune QOl,')), availaMp at 

http:// theusconsti tu tion.org/ sites/ debul t/ files/ briet:s/The %20 Environmen tal%:20 Forum %:20-

%20Broken%20Circuit.pdf 

.S 
44 

Judge Edwards has observed. (Notably, President Obama's first successful nominee to the D.C. 

Circuit, Jud~e Srinivasan, was confirmed without a sin~le 'no' vote in either the JLldiciary 

Committee or the full Senate.) 

Finally, bloatin~ the bench would undermine the close 1V0rkin~ relationship that 

contributes to collegiality on a small court. Judge Edwards has noted that" smaller courts tend 

to be more col1egial," because ('smaller groups have the potential to interact more etliciently, 

makin~ close and continual collaboration more likely."" 

"It stands to reason," wrote Jud~e Edwards, "that the lar~er the court, the less 

frequently any two judges sit together and interact with each other. . [1Jt is easier to achieve 

collegiality on a court with twelve members than on one with twenty or thirty. It is easier for 

.iLld~es to keep up and become familiar with each other."2C, Thus, ,,[tJhe appointment of more 

judges to handle growing case10ads does not come without substantial costs."" 

Of course, the same principle applies on the other side of the Potomac. As llarvie 

vVilkinson put it when he was ChiefJudge ofthe Fourth Circuit, ,. [cJol1cgiality may be the first 

c(JslIaHy of expansion on the federal appellate courts"22: 

[OJne engages in more fruithtl interchanges with colleagues whom olle deals 

with day after day than with.iud~es who are simply faces in the crowd. 

Smaller courts by and large encourage rnore substantial investrnents in 

relationships and in the reciprocal respect for differing views that lie at the heart 

of what appellate justice is about."' 

19 EJv',,:urJs, SUjil"il note G, at 1675: see also id. ("1 have ahvays believed that it is easier to achieve collegiality on u 

court vyith hvC']v(' members than 011 011(' '\vith tvYC'nty or thirty. It i~ (,8sier for .illOg('~ to k('C'p up anrllwcollw 

fmnili81' vyith ('8ch othe'l'. Smalle'r groups have' the' pote'ntial to illte'ract more' e'flicie'lltly. making' close' and continual 

collaboration more likely."). 

ill Id. 

:ll Td. 

:ll \~Tilkin~on, supra note'S, at 11 7.'j, q1l0in1 ill Ed"\v8.rds, supra note' 6, at 167.). 

Id. at 1175-74: accord Tjoflat. .}~upra note 8, at 2-5 ("[J]uJges in :,>mall circuits arc able to interact v,·ith their 

colkag1lC's in 8. much more' e'xpe'oient and e'fflcie'llt m8111lC'r than junge'~ on jumbo court~."). Junge' \\Tilkinson 
45 

Other judges have voiced similar concerns about the inverse relationship between court size 

ami collegiality. Judge Gerald Tjotlat served on the old Fifth Circuit belore it was split into the 

new Fifth Circuit and the Eleventh Circuit on which he now sits. Judge Tjotlat's testimony 

before the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the 

Courts confirms the risks inherent in large courts. By comparison to a larger court, he fC.lLlnd 

that" the close ties that can be forged on a smaller court allow you to build trust in your 

colleagues.""4 The impaired collegiality of a large court, Judge Tjotlat found, atlccts its work: 

llaving served on both the former Fifth Circuit and now the Eleventh Circuit, 

that I can definitively attest that the entire judicial process---opinion writing, en 

bane discussions, emergency lnations, circuit aUlninistration, and internal court 

Inattcrs-runs tnuch Inorc smoothly on a smaller court.:.!.'> 

A 1993 report commissioned by the Federal Judicial Center agreed that" [aJbove a certain size, 

collegial appellate courts do not operate effectively.""" And in 1964, the same Judicial 

Conference committee that recommended splitting the old Fifth Circuit concluded that "nine is 

the maximum number of active judgeship positions which can be allotted to a court of appeals 

without impairing the efficiency of its operation and its unity as a judicial institution.""' The 

D.C. Circuit, with eight active judges is dangerously close to the line. 

The threat to collegiality that is posed by bench bloat are not merely hypothetical. 

Some argue that we see its efiects in larger COLlrts like the Sixth Circuit with its 2B active and 

discLlsses other side effects ofLench bloat that are \vorth) ofthis Lody's attention. These include federal 

jurisdiction creep aud corresponding encroachment into the traditional jurisdiction afthe states, sa id. at 1165 

("The more jlldg'('s there arC', the' morC' jllrisoiction ,villIX' 8ssignC'rl thC'lll and tlw more' f('o('ral rulings ,viII he 

handed dmvn. The sphere offederalla\y ,vill gradually but inevitably expand at the expense of the la,v of the 

states."). <Hld reduction of judicial quality. id. at 1167-68. 

i+ "l'joflat. supra note 8. at 1,; see also Judge Gerald Bard Cljoflat. ~\1oreJudges, Less Justice, 79 A.B.A.J. 70, 70 (July 

1993). 

1,S Tjoflat. supra note 8. at 5. 

ib GOH.DON BEH.IVL\NT, ET i\.L.. FEDEH.AL JUDICIAL CE:..rTEH, I:VIPOSING i\. :'VIOH.ATOHlU.\1 ON THE NU.\WEH 01" 

Ji"EDEnAL JUDGES: A:t\ALYSIS OF AnGLTMENTS AND IIvIPLICATIO:\"S (1993). 

i~ REPOH.TOF THE JUDICIAL CO:..rl"EH.E:'\CE 01" THE CNITED STATES 11,-1.:) (1961,). 
46 

senior judges."' At least one memher of that court attrihuted in part its "decline in collegiality" 

to "increase in numbers."" Similarly, many have called lor the Ninth Circuit to be split into 

two circuits, precisely because of the negative effects that such a large bench (i.e., 29 scats) has 

on collegiality. As the Ninth Circuit's Judge Diarmuid O'Scannlain testified a few years ago 

before a subcommittee ofthis Committee: 

The sheer magnitude ofoLir court <Jnu its responsibilities negatively afJects al1 

aspects of our business, including our celerity, our consistency, our clarity, a1ld 

eller! our collegia lily. Simply put, the Ninth Circuit is too big. It is time now to 

take the prudent, well-established course and restructure this circuit. 

Restructuring large circuits is the natural evolution of judicial organization. 

Restructuring has worked in the past. Restructuring will work again.'o 

Simply put, without a growing case load to justify new appointments, there is no reason to 

invite the risk of factionalism inherent in larger courts. 

Closely related to bench bloat's effect on collegiality is its harmful effect on the 

coherence of circuit law. In our system, an appellate decision is binding not only on district 

courts within the circuit, but on future panels of the circuit court. It is a simple rule to st<Jte, but 

otten a challenging one to lollow, especially when the precedent a panel is hound to lollow is 

one it would have decided differently in the first instance. The en bane process impose some 

measure of discipline onjudges who might otherwise violate the principle of stare decl""', bLlt 

courts can only rehear so many cases en bane. The consistency of circuit law depends primarily 

upon each judge's loyalty to the institution of the court and his respect for his fellow judges. 

,)'ef!~ f.g., .:\darn Liptuk, Ih:,ighing fhe Place ifa Jltdgf ill a Club oJ600 If/fide ~\if'll, N.Y TIl'vIES (I'vlay 16,2011) 

("[TJhe l:nited States Court of .Appeals for the Sixth Circuit is surely the most dy"fullctional federal appeals 

court in the nation. Approv8.1 of the 1\.linut('s of the' JUIl(, l-k QOOI Ex('cutiv(' S('ssion of th(' S('cono Circnit, QQl 

F.RD. 38, 229 eV"'1'e have all read about the problems vilith collegiality in the Sixth Circuit."). iJut see .H..onald 

Lee Gilman. Uookie 'Year 011 llie Fede/"tlllJellch. GO OIIIO ST. L.J. 1085, 1093 (1999) ("I am happy to report that a high 

o('gr('(' ofcol1('gi<llity ill f<lct ('xi~ts on th(' Sixth Circuit Court of App('al~. All nwml")('rs ofth(' conrt hav(' l")(,(,11 

uniformly courteous and respectful."). 

LmlJ'(,1l I\". Robel, Privatf' JustiC£' alld the Ff'deral Rf'nch, (-j.'-) IND. L.J . .'-)~1, 900 n.oO (1~9,')). 

50 NiJlth Cif"{'uit Court C!fAppf'als Judgeship and Reorganization Hf'arillg 011 H.R. 2728 R~fo"f' the Submmm. 

On Courts, the Intermt, and Intellectual Proper~v C!ftlze H. Com In. On (Oct. 21. :200S) (statement of Judge 

Dim·muid F. O'Scannlain). at 2, a'{)ailable at http://judiciary.house.gov/legacy/oscannlainl0:210S.pdf. 
47 

And, as we have seen, mutual respect is characteristic of small courts. "Simply as a matter of 

probability, there is a much greater chance on a smaller circLlit that a sitting panel will contain 

at least one judge ~vho sat on a prior case that is under discussion, and is £'uniliar with that case 

and committed to it." /\s a court grows, individual members sit together on panels less 

frequently ami are less likely to have been involved in the precedent they are bOLllld to follow. 

Again, Judge Wilkinson: 

As the number of judges rolls ever upward, the law ofthe circuit will become 

more nebulous and less distinct. Indeed, it is likely that the law of the circuit will 

be replaced by the law of the panel. Judicial decisions may come to be viewed as 

resolving only that day's dispute. Litigation will become more a game of chance 

and less a process with predictable outcomes." 

This tendency is selfpell)etuating. "Under the law of the panel-as opposed to the law of the 

circuit-trialjLldges lack clear guidance Ii'om the circuit bench, and appellate dispositions may 

begin to assume for those judges a haphazard and ad hoc quality."'\2 As the law of the circuit 

becomes less predictable, its precedents less firmly rooted, and its roster of potential panelists 

longer, litigants will more Iil,ely to roll the dice on appeals that f()rmerly would not have stood 

a chance. 

The erosion of a consistent law of the circuit is no mere academic problem. Judge 

Tjoflat has observed that "[aJs the law becomes unclear and un stahle, our citizens-whether 

individuals or entities like corporations-lose the h'eedom that inheres in a predictable and 

51 \~Tilkin~on, supra note' H, at 1176: see al,'o Tjofh.t, .Wfpf't1llote .s, at 1-'1 ("Tn inC1'C'8.sing tIl(' size' of a court of app(,81~. 

the Congr('s~ must cOllsioC'r tIl(' ('ffeet the i11(T(,8~(, has on (1) the court'~ efficiC'llCY. an<i ('2) tIl(' stability of the rule 

ofla\v in the circuit. rVly experience-and that of others who have given the subject considerable study and 

thought-ir- that the increase in circuit court judg'eshipr- neg'o.tively affects both ther-e arear-."). 

"" !d. 
48 

stahle rule of law."" Thus, ,,[tJhe demand for more judges, if satisfied, will inexorahly leadlittle by little-to the erosion of the freedoms we cherish."'" 

The eflect of inconsistent circLlit law IVOLlld be especially pernicious on the D.C. Circuit. 

The D.C. Circuit is the nation's premier administrative law court, and the other courts of 

appeals frequently rely on its expertise in the regulatory arena. If the D.C. Circuit cannot speak 

with one voice, our entire system of {J(jministr<Jtive law wi11 be in jeop{Jnly. 

It is clear that many proponents o{'the PrcsiJcnes suddenl,y aggressive nominations 

effort see this as nothing more than an opportunity to stack the court with nominees of the 

President's choosing, in an attempt to suhstantially change the ideological composition of the 

court. As my fellow panelist, Carrie Severino, has reported, Senator Schumer recently listed 

D.C. CirCllit cases he disliked at a 1L1lldraising dinner and promised the assembled donors, 

"[wJe will fill up the D.C. Circuit one way or another.·'·'·-' Such a strategy risks undermining the 

collegiality that has been the court's trademark f,)r decades, as I've explained. 

Rut just as importantly, that strategy rests on a false premise. The D.C. Circuit has not 

treated the current Administration any more negatively th<:ln it has prior AJrninistr<:ltions. 

vVhile the court has received suhstantial criticism in the New York Times and rr"shmg/on Pas/ 

after ruling against federal agencies in a small handful of hot-hut ton cases," such criticism is 

wildly overstated. According to the federal COLlrtS' statistics, the D.c. CircLlit reversed 

administrative agencies in lG.7 percent of cases it decided during the ZOO[)-ZOlZ reporting 

Tjofb.t, supra note .s, at 11. 

,')1< Id. 

8$ Is lite Admit/is/ration Tr:ving 1o Slack the D.C. Circuil, CHARLESTO:\" DAILY I'vlAIL, Oct. 25, 2013, 

http:! ;'\v'\vvy.dailytl1ail.com/Opinion/Co1Tl1J1C'lltary/201 ~;1 0'2401 27. 

,Yee, e.g., Floyd :\Ionis, Circuit Courl ..:..\/eeds to Lei the SJi,.C. Do lts Job. N.Y "rnvIES, Sept. 21. 2012. at 131: 13en 

Prote~s, As Trail Strf'f't Fights Regulatioll, Tt Has Radrup OJI tlJf' Rf'lIrh, :.r.Y TnvlFS, Sept. 25,2012, at F2; Steven 

Pearlstein, Reg1ilator:vjailure? Blame the D.C. CircUlt, \VASH. POST, Apr. 9, :2010. Blit see Eugene Scalia, lf7zy DoddFrank Rules Keep Losing III COllrt. ·VlALL ST. J., Oct. 3. 2012. 

]() 
49 

years. From 200 1-200R, it reversed the administrative agencies in I R.R% of the cases it 

decided." The COLlrt continLle, it, work, steadily and nonideologically, li'om one admini,tration 

to the next. It would be a tragic mistake to risk upsetting this record by shooting for a single 

digit or ncar-zero reversal rate. 

~l~ The underlying statistics are available at 

'~'.'.""."'~'_""" U"""HU.X"c"~'_U',"_""'p"'. Specifically. they are dnnvn from 

prC'sent oat8. on ca~('s dispo~('d by 

11 
50 

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 
51 

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:] 
52 

Testimony by Nan Aron, President, Alliance for Justice 

United States House of Representati ves 

Committee on the Judiciary 

October 29,2013 

Mr. Chairman, thank you very much for this 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'm not 

sure I can speak to the word "always," but I can say without hesitation that today, with more than 

one often judgeships vacant, with caseloads rising rapidly, and with the complexity oflitigation 

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-74 in district courts and 17 in circuit courts. 

Astonishingly, there are more empty judgeships now than when President Obama took office, 

almost five years ago. In fact, just among the states that are home to members of this committee, 

there are a total of66 open seats. Strikingly, 34 of those are considered "judicial emergencies" 

by the Administrative Office of the United States Courts, meaning those courts are so 

overwhelmed that they can no longer function properly. In fact, 92 percent of all judicial 

emergencies in the country are located in states represented on this committee. 

This crisis is not an abstract problem. It 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. Judges complain they can't 

spend the time they need on individual cases to render the best possible opinions. 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 in knots. 

Contract disputes go unresolved. Individuals seeking justice for discrimination, or fraud, or 

disputes with banks or businesses or the government, are left hanging, often for years. 

Every American deserves their day in court. The Constitution explicitly says one of its major 

purposes is to "establish Justice." Every American has a right to expect that the remedies that the 

law provides are available to them in a reasonable time, and not dangled out as some faint hope 

that might someday be within reach, assuming ajudge can even be found to hear their case. 
53 

But the issues of dysfunction and delay, of overwork and too few resources, become even more 

disturbing the higher up in the federal system you go. In the circuit courts of appeals the 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 U.S. Court of Appeals for the D.C. Circuit. 

There are currently three vacancies out of II seats on the court that is often described as the 

second most important in the country. The court, the importance of which is rivaled only by the 

Supreme Court, shouldn't be forced to do itsjob with 27 percent of its seats empty. It's like 

telling a football team they can only use eight players on Sunday, instead of II. The country can 

ill-afford to have this critical component of our judicial system send less than a full team into the 

game. 

These are the facts: The D.C. Circuit handles some of the most complex, lengthy, sensitive 

litigation in the federal courts. Its cases are characterized by long trials, multiple plaintitl's and 

defendants, armies oflawyers, massive records, and long, technical opinions. Those indisputable 

facts alone make it essential to fully statl'this court. In fact, I recall in 2003, when, just like today 

only eight seats were filled, Senator Orrin Hatch called that a "crisis situation." 

The D.C. Circuit is the federal appeals court that most closely oversees the actions of federal 

agencies on topics like the environment, consumer protections, workers' rights, banking 

regulations, and other vital issues. It digs deeply into central disputes over how the government 

functions. As Chief Justice John G. Roberts, Jf., himself a former member of the D.C. Circuit, 

explained in a 2005lecture--"What Makes the D.C. Circuit Different?"-the court has a 

"special responsibility to review legal challenges to the conduct of the national government." 

And, despite its name, its decisions reach far beyond the District of Columbia, to touch every 

single American in every corner of the country. It makes no sense to shortchange the court that 

handles some of the toughest cases with the biggest impacts. 

But in addition to the special nature of its cases, the plain fact is that the court's workload has 

increased significantly in recent years. 

In 2003, when John Roberts was confirmed to the ninth seat on the D.C. Circuit, there were 

1,001 pending cases. In 2005, when President Bush put forward Janice Rogers Brown and 

Thomas Griffith for the tenth and eleventh seats, there were 1,313 pending cases. And today, the 

trend upward continues, with 1,479 pending cases. 

With only eight of II seats filled, the caseload is currently at 185 cases per active judge. In 2005, 

when John Roberts moved up to the Supreme Court-his seat is still vacant, by the way-I,313 

cases were divided among the full complement of II judges. That represented 119 cases per 

judge. Even if all three open seats were filled tomorrow, the cases per active judge will be 134. 

The federal judges who have the clearest view of the problem have the clearest answers. Tenth 

Circuit Judge Timothy Tymkovich, who was appointed by President George W. Bush, heads up 

the Judicial Conference committee that makes recommendations to Congress on the number of 

judges needed in the federal system. He recently testified before a Senate Judiciary 

subcommittee about the D.C. Circuit, and spoke of what he called "the uniqueness of their 

caseload." He noted, for instance, that the court has "something like 120 administrative appeals 

2 
54 

per judgeship panel, versus about 28 for the other Courts of Appeals." He was clear that the way 

the D.C. Circuit is evaluated must be different from other courts, and concluded unequivocally 

that "we haven't seen any reason to reevaluate" the size of the court. 

Former D.C. Circuit Chief Judge Pat Wald has explained why that's so, writing that "The D.C. 

Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the 

greatest impact on ordinary Americans' lives ... These cases can require thousands of hours of 

preparation by the judges, often consuming days of argument, involving hundreds of parties and 

interveners, and necessitating dozens of briefs and thousands of pages of record-all of which 

culminates in lengthy, technically intricate legal opinions." 

Given the stresses on the D.C. Circuit and the importance of its legal mission, we're pleased that 

President Obama put forward a full slate of outstanding, highly qualified nominees, which the 

Senate is now considering. Nominating qualitled men and women for vacant judgeships isn't 

some kind of illegitimate act, as some have inferred. Every president does exactly the same 

thing. When there are vacancies on the federal bench the president is required to nominate new 

judges, subject, of course, to the advice and consent of the Senate. Article TT, section 2 of the 

Constitution is very clear on this matter. It's not a negotiable point. The president cannot ignore 

his constitutional obligations, and neither should the Senate. 

I'd like to conclude my testimony by referring to those obligations. 

I would respectfully submit that the committee's question, "Are More New Judges Always the 

Answer," misses the point. The Constitution makes a promise to the American people that our 

government will function in a way that will "establish Justice." Justice cannot be established, and 

the rule oflaw cannot be made manifest, if the federal court system is unable to function because 

it is starved of judges and resources. 

It is the absolute obligation of Congress and the president to ensure that the third branch of 

government is healthy and fully able to do its job. When your constituents walk into a federal 

courthouse, they should enter knowing that everything possible has been done to ensure that they 

have access to the t1nestjudicial system and set oflaws in the world. Regrettably, that is not true 

now. It's not true in the district courts, in the appellate courts, and especially not in the D.C. 

Circuit. 

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 and 1 am eager to answer your questions. 
55 

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 
56 

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:] 
57 

Testimony of 

Carrie Severino 

Chief Counsel and Policy Director 

Judicial Crisis Network 

Before the 

House Committee on the Judiciary 

October 29, 2013 

Are More Judges Always the Answer? 
58 

This June the President took the unusual step of staging a Rose Carden 

announcement highlighting his simultaneous nomination of three individuals to the Court 

of App~als l(w UlP DC Circuit. The jHesident portray~d the D.C. Cin~uit as a court in crisis. 

H~ sugg~sl.ed that the D.C. Circuit was short-staff~d, thr~at~ning our ability to maintain a 

fair and functioning judiciary. 

nut th~ numbers tell a difler~nt story. Th~y show th~ D.C. Circuit to b~ the most 

und~rwork~d court in the country, with a cas~load that has rlropp~d significantly over th~ 

p as I, decade. 

Them., are many rlifferent ways to measure a court's workload, but they all tell the 

same story in this cas~. TllP most rel~vant statistic, and the on~ that forms part of the 

Administrative Orrice or the Courts' own rormula 1.0 gauge wOl"kload, is the number or 

annual filings per judge. With its current complement of eight active judges, equally 

balancN] betwel'n RCJ1Ublican and Dl'mocratic nominl'es, the D.C. Circuit has til(' lowl'st 

numlwr of n~w filings per .iudg~ of any circuit court. By comparison, th~ Fifth Circuit has 

more than th,-ee times as many cases filed ller judge as does the D.C. Circuit, and the 

Eleventh Circuit over four times as many. 

Th~ number of eases disposer] of p~r judge is anolh~r m~tric by which to gauge 

wOl-kload. Once mOl-e, t.he D.C. Ci,-cuit is the court. wit.h t.he lowest. numIJ81-s. The Eleventh 

Circuit again has more than four times as many cases disposed of annually per active judge 

as docs the D.C. Circuit. The Second, Fifth, and Ninth Circuits all have more than three 

times as many cas~s rlispos~d of annually p~r aci.ive judg~. 

One can also look at the numuer of cases disllosed of on the merits - a uetter gauge 

of the type of cases that arc taking up t.he most time for judges. Using that metric, four 
59 

other circuits have more than three times as many cases decided on the merits per active 

judge as docs the D.C. Circuit. The Eleventh Circuit, again the workhorse, has nearly five 

tin18s as many. 

Every circuit court has a unique balance of types of cases, and the D.C. Circuit is no 

exception. Its role in hearing many achninistrative challenges means it docs get more than 

its fair sharp of complicatpd regulatory issues, but that hardly makps up for tlIP Iwavily 

skpwpd absolut.e nllInlwrs of casps. Tlw averagp administ.rat.i ve law casp may t.akp longer In 

work t.hrough t.han t.he average criminal case, but. not. t.hree t.o r,ve t.imes as long. 

Not only is the DC Circuit less busy than it sister courts, it has a low cascloarl in 

absolut.e t.prms. 11. officially hears oral argument.s in cases het.wppn Sppt.embpr and May, 

hut ror the past seveml yeaJ"s the court has had to cancel siU.ings because or a lack or cases. 

The D.C. Circuit judges agree. Several provided candid comments in response to 

qupst.ions from Spnat.or Grassley about. wlIPt.her npw judgps wprp nepdprl on l.I18ir court.. 

One even stated that, "Tf any mOl'e judges were added now, there wouldn't ue enough work 

to go around." 

Others pointed to the significant contl'ilmtion of senior judges to keeping up with the 

court's caseload. The statistics cited previously all presume that only the eight active 

judges arc carrying the court's cascio ad, 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 pquivalent tn :1.25 activp .iudges. Adding that to tlIP eight active .iudgps, 

there are the full time equivalents of 11.25 judges serving on the D.C. Circuit cunentlymorc than numucr of authorized scats on that court. The judges responding to Senator 
60 

Crassley indicated that those senior judges were fairly young and healthy on average and 

could be expected to serve for another decade. 

On an anecdol.allevel, my experience derking at I.he D.C. Circuil. [or ,Judge Davirl 

Sentelle was consistent with all these statistics. I had friends clerking at other a]J]Jellate 

courts across the country, and certainly felt that our workload was light in comparison with 

theirs. 

What's more, the DC Circuit's already-low caseload is actually in decline. Since the 

2003-04 term the numbers of cases scheduled for oral argument per active judge has 

clecreaserl by about. lR%. This is remarkable consirlering the fact. t.hat. the court. currently 

has only eighl. ac1.ive judges, eompared 1.0 a high o[ 10 ac1.ive jurlges [rom 200(;-OH. 

The president was correct about one thing in his Rose Garden speech: there are 

some courts that are truly short-staffed and in crisis. The Administrative Ofl'ice of the 

Courl.s, taking into account I.he number and I.ypes of cases each circuit hears, has irlenl.ifiecl 

eight a]Jpellate seats that constitute judicial emergencies. But the DC Circuit is nowh81'e 

on the 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% of federal vacancies, including 75% of the "judicial emergencies" had no nominee? 

There is no neutral principle that explains his move, suggesting that the timing and 

manner of t.he three DC Circuit. nominations was simply clue t.o politics. 

The DC Circuit enjoys a unique role as thl' court that hears the lion's share of cases 

addressing administrative law and regulatory agencies. Its position as a check on 

government. power put.s it. in t.he crosshairs of a presirlent. whose governing st.yle is 
61 

characterized by aggressive usc 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 DC 

Circuit nominations. At a fundraising dinner this March, Sen. Charles Schumer 

lamented decisions of the court that have enforced legal limits on his prefelTed 

political agenda. He criticized cases in which the Court overturned an EPA 

regulation that Iacket! statutory authority, tount! that the SEC was promulgating 

regulat.ion~ wit.houl performing t.he requirer! cosl,benefil analysis, anr! in~ist.ed t.hal t.he 

I"8cess appoin(.men(. power could only be used when (.he Sena(.e was orr,cially in recess. In 

onler t.o 1"011 back the policy result.s of these decisions, Sen, Schumm' vowed t.hat. "we will till 

up the DC Circuit one way or the other." 

Sena(.or Harry I{eid has also poin(.ed (.0 polit.ical reasons (.0 move rorward on (.he 

presidents' nominat.ions t.o the DC Cin;uit, complaining the coud. was "wl'eaking havoc in 

tl10 country." IIe stat.cr!, "W ("re tocu~ing very intently on the DC Circuit. We neecl at least 

one more. There's Ihree vacancies, we need at.leasl one more anr! t.hat. will swit.ch t.he 

majorit.y." 

Our nation is st.ruggling t.o get. its tinancial house in order, and our judiciary is 

laboring in many places wilh a ~horlage of jur!ges. This is nol t.he lime t.o increa~e Ihe 

burr!ens on laxpayers for a courl t.hal doesn't. neer! new judges or 10 divert scarce resources 

from where tbey m'e needed most. Congress sbould instead act to sbield tbe American 

people from the unnecessary financial burden of timding additional judges simply to 

facilitate the president's aggressive political agenda. 
62 

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 com-
63 

plicated 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. 
64 

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:] 
65 

n~ H"'lQfilbl~ lI.~n W, (",o..xllau,:. Cbllir 

COOlmineeoo 11,~ JudicLtuy 

US 11"""" ofReprc",nUlliv,," 

WuI!inglOll, 0(:' 20S 15 

I am wrilingon behalf o('h~ American Ba • .A~3Iioo 10 e>lp'~" w, vicws on,he 

JudJ!e'hip need. of Ihe f<tlmll judicia,y aM re<Ju~,' Ibal Ihi. 11.'11'" M made pM of lite 

recoRl I'Ifloday" hellring before )'(IO,rwmmillee, titltd, -J\ll!judges alway' the ",,,weft" 

WI,en fWe, al CI.)U,1) d.l n(ll hiv~ .... ,;T,cirnljud!!es HI keep up wilh 1M ... orliIMd. civil1rial 

<locke" IOke I back _tlocrinoin~1 dnckets due 10 IIIe s~ooy Tri ll ACI A •• ,,,,,lil, 

per>istrnl j~dge '"<II1>g ... ,,,ere,,,,, ,be length oj' ume ,h., cI\'illiligo"" and bu.incsses 

",ail forlheir~y in coon, create p!~lIes Ih~t robOlile~ ju~I;ce. Ind inCit asc case 

bac~lol9' thli .... ill pl'rp!:lua,e delay, fo' ~ears 10 cOOle. Thls 1Ia. r~oll COll~U"n.es f,,,,. ,hc 

financial well·tJj)jngofcOOlmunil'e:; and buJine.5eS and Ihe I*r>nlal he. ofliligMI5 

whMe c."", m,," be 1I • .,d by ,hc f,xI"",1 COIlns - eJCltnp!n ,nclude c.oses involvinll 

mallenll'" ttl the COfIilitulionalhy of • law, unfaj, n",,11<'$< pn<.1ictS under fedc .. l 

an,i,,,,!>! Ilws.. patenl infringernen" .poIice bru,ali,y. emploY,"enl cJiscrimina,ion, .nd 

bankruplcy 

1'hc negoli,'e coo,~u~ncc$ of,oo f,,,, judgCll h~\' ~ bH'O e~acerb.!ed b~ Ihe .cro.Hhe· 

boo,d budg..~ CUI> mand.,e<! by ""'lu""" .. i..,., ,hi. fiscal )'ea, S,a/T !.)·oIT~ Illd fuzl .... gk. 

Md reduc ioo ~ in strVice~ and oper:l1ing hoors impl~mc",ed ,', COUIU acro~ lIlc (:(IUIl1!)' 

in re:spon~'o scques,,,,,ion ","'C nude i, N on morc dlffiCull !Qr coons w"h 100 few 

judgos.o keep up wil/l raseload, and dell"", limely jus,ice. The coolblruuion 01'100 f""'" 

j"dgei a"d i"~"mcicm funding is dim'n''''i".!! Iheabilily ofour fC(lcrai couns 'o!,e.vo: .he 

""",,Ie Ind deliver limel~ jUJ!ice 

fhela$l W\l prchCl\s"tjud~~ bill was ,,">t,cd in 1'l9O In lhe imerveninl! )'ean, 

f"lknl judi";ll clido.d. h. ,'e 5(eadil~ &lId ,I .... ply ill"'.,utd. fueled in large pan by 

congres.IOTIII c.~ .... n~OI1 offOderal L:oon jurilliicti,)f111nd I..,(iooal drullilod imnl;lIfJolian 

policies ,bl ""II for and fund enhlnced law eofo«:emenl eITon~ De5pi,e Ihillj)'\>W,h, 

COOll1ess hs. IU!hori~<:tl only ]~ ad diuon.1 diSlriCI COUll jlldgeships _ i" 1999, 2000. and 

2002 - while ~lIowiog • ~al[-dO>'cn icmponry judpips in IlIher dislrlc" 10 t:<p'rc 

Consequenlly, C""lIllie r.~' D yean, dis,rici couns hl\'ec:<pericnced. 39 pereen, 

mcrta~ in filings,l»Ji oolya ;t pnuni ''''''''5. injudg .. hlp._ ",,"" nlOft sob<.'ling. Ihe 
66 

October 29,2013 

Page 2 of4 

number of appellate court judges has not changed, despite a 34 percent increase in filings 

since 1991. 

The Judicial Conference of the United States conducts a survey of the judgeship needs of 

the US. courts every two years during which it considers requests for additional 

authorized judgeships as well as requests for not filling existing vacancies. Policies were 

adopted by the Judicial Conference in 1997 and 1998 establishing procedures for 

recommending that vacancies not be filled on district courts and courts of appeals, 

respectively. All Judicial Conference recommendations mth regard to judgeship needs 

originate from requests made by individual courts. If a particular court does not make a 

judgeship request, the Judicial Conference does not initiate an inquiry 

The Judicial Conference's review process starts with an examination of weighted or 

adjusted case filings of that court, after which many additional factors are taken into 

consideration. Judgeship recommendations are developed using a multi-step process of 

evaluation that takes into account the experience-based views of judges affected by the 

workloads, types of cases that come before the court, magistrate judge assistance, status 

of senior judges, geographical factors, cause of caseload growth and availability of 

alternative methods to handle it, administrative practices, and a host of other factors 

Consideration of these additional factors diminishes the overall importance of the 

weighted or adjusted case filings and explains why judgeships are not requested in every 

jurisdiction or circuit with abnonnally high caseloads 

This past July, Senator Coons (D-DE) introduced S. 1385, a comprehensive judgeship 

bill that is based on the Judicial Conference's latest detailed assessment of the resource 

needs of the judiciary. The bill calls for the addition of 5 permanent judgeships and one 

temporary judgeship for the courts of appeals and 65 permanent judgeships and 20 

temporary judgeships for the district courts. 11 also calls for the conversion of 8 existing 

temporary district court judgeships to permanent status 

The district courts in which the Judicial Conference is recommending additional 

judgeships currently are laboring under weighted case filings of almost 630 per 

authorized judgeship, far above the 430 weighted caseload threshold that the Judicial 

Conference uses as a starting point for examining a district court's need for additional 

judgeships. If Congress created all of the judgeshi ps requested, the weighted caseload of 

all authorized district court judgeships would still be in excess of430 cases 

In some jurisdictions, caseloads are dramatically worse: judges of the District of Arizona 

and the Western District of Texas have caseloads that exceed 700 weighted filings, and 

judges in three districts - the Eastern District of California, the Eastern District of Texas, 

and the District of Delaware -labor to dispense timely justice with weighted caseloads of 

over 1,000 per judge. The litigants before these courts deserve better 

The need for more judgeships is just as evident in our courts of appeals, where the 

number of appeals filed annually has grown from approximately 41,000 in 1990 to close 

to 56,500 in March 20 l3.The Judicial Conference has limited its request to four 
67 

October 29,2013 

Page 3 of4 

permanent judgeships for the Ninth Circuit Court of Appeals and one permanent 

judgeship for the Sixth Circuit Court of Appeals 

Weare aware that some Members of Congress question the method by which weighted 

and adjusted case filings are determined and caseload minimums for considering the need 

for additional judgeships are set by the Judicial Conference. A review of documents 

dating back to 2003 reveals that the concerns of the Government Accountability Office 

(GAO) with regard to the validity of the methodology used to determine case weights 

have been a major factor of contention that likely has contributed to the failure to enact a 

comprehensive judgeship bill since 1990. We urge collaboration among Congress, the 

Judicial Conference, and the GAO to resolve this impasse so that the substantive needs of 

the US. courts can be met without further delay 

Just as Congress has an obligation to oversee the courts, it likewise has an obligation to 

provide the judiciary with the resources it needs to carry out its constitutional and 

statutory duties. There are several steps, short of enactment of S 1385, that Congress 

could take to help the judiciary maintain its excellence and serve the people in a timely 

and just manner 

1. Congress should quickly move to establish new judgeships in the five district 

courts singled out by the Judicial Conference for immediate relief -- the District 

of Arizona, the Eastern District of California, the District of Delaware, the 

Eastern District of Texas, and the Western District of Texas. The astronomically 

high caseloads under which they struggle are indisputable - and indefensible 

Both the House and Senate Financial Services and General Government 

Appropriations Committees acknowledged the severity of the conditions by 

including a provision in their FY 2014 appropriations bills to authorize new 

judgeships in these districts 

Congress should convert the eight temporary judgeships into pennanent 

judgeships or at least extend their temporary status for ten years or more. To 

reiterate the Judicial Conference's concern, without reauthorization, all eight will 

lapse next year, further diminishing scarce judicial resources in these districts, and 

both the Senate and House Financial Services and General Services Appropriation 

bills contain provisions extending these judgeships 

3. Congress should consider the impact oflegislation on the workload of the federal 

courts. Congress should take steps to assure that the judiciary has sufficient 

resources to handle new responsibilities resulting from enactment of legislation, 

such as immigration reform, that expands federal court jurisdiction or is expected 

to substantially increase the workload of the federal courts 

4. When making budgeting decisions, Congress should take into consideration that 

the federal judiciary is essential to preserving constitutional democracy and 

freedom, and that waiting to restore funds until the erosion in the quality of justice 
68 

October 29,2013 

Page 4 of4 

becomes afair accompli is not a viable national option. The ABA urges Congress 

to protect the federal judiciary Irom future deli cit reduction and to increase 

funding for FY 2014 to an amount equal to or greater than the amount approved 

by the House Appropriations Committee this past summer 

Thank you for the opportunity to express the views of the ABA on issues so central to our 

mission. 

Sincerely, 

~~!~ 

ce. Members of the Subcommittee 
69 

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:] 
70 

'i~nit£d ~rot£s ~enatE WASHINGTO~, DC 20510 

The Honorable Arlen Specter 

Chairman 

Committee on the Judiciary 

224 Dirksen Senate Oflice Building 

Washington, DC 20510 

Dear Chairman Specter: 

July 27, 2006 

We write to request that you postpone next week's proposed confirmation hearing 

for Peter Keisler, only recently nominated to the D.C. Circuit Court of Appeals. For the 

reasons set forth below, 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, receive and review necessary infonnation about the nominee, and 

deal with the genuine judicial emergencies identified by the Judicial Conference. 

First, the Committee shonld, before luming IQ the nomination itself, hold a 

hearing on the necessity offillillg the 11th seat on the D.C, Circuil, to which Mr. Keisler 

has been nominated. There has long been concern - much of it exp!'cssed by Republican 

Members - that the D.C. Circuit's workload does not warrant more than 10 active judges. 

As you may recall, in years past, a number of Senators, including several who still sit on 

this Committee, have vehemently opposed the filling of the 11th and 12th seats on that 

court: 

• Senator Sessions: "[The eleventh] judgeship, more than any other judgeship in 

America, is not needed." (1997) 

• Senator Grassley: "1 can confidently conclude that the D.C. Circuit does not need 

12 judges or even II judges." (1997) 

• Senator Kyl: "If ... another vacancy occurs, thereby opening up the 1 1 'h seat 

again, I plan to vote against filling the seat -- and, of course, the 12'h seat - unless 

there is a significant increase in the caseload or some olher extraordinary 

circumstance." (1997) 

• More recently, at a hearing on the D" C. Circuit, Senator Sessions, citing the Chief 

Judge of the D.C. Circuit, reaffinned his view that there was no need to fill the 

11 [lJ seat: "I thought ten Was too many ... I wm oppose going above ten unless the 

ca,eload is up." (2002) 

• In addition, these and other Senators expressed great reluctance to spend the 

estimated $1 million per year in taxpayer funds to finance a judgeship that could 

not be justified based on the workload. Indeed, Senator Sessions even suggested 

that filling the 11th seat would be "an unjust burden on the taxpayers of America." 

Sir.ce these emphatic objections were raised in 1997, by every relevant 

benchmark, the caseload for that circuit has only dropped further. According to the 
71 

Administrative Office of the United States Courts, the Circuit's caseload, as measured by 

written decisions per active judge, has declined 17 percent since 1997; as measured by 

number of appeals resolved on the merits per active judge, it declined by 21 percent; and 

as measured by total number of appeals filed, it declined by 10 percent. Accordingly, 

betore we rush to consider Mr. Keisler's nomination, we should look closely - as we did 

in 2002 -- at whether there is even B need for this seat to be filled and at what expense to 

the taxpayer. 

Second, given how quickly the Keisler hearing was scheduled (he was nominated 

only 28 days ago), the American Bar Association has not yet even completed its 

evaluation of this nominee. We should not be scheduling hearings for nominees before 

the Committee has received their ABA ratings. Moreover, in connection with the most 

recent judicial nominees who, like Mr. Keisler, served in past administrations, Senators 

appropriately sought end received publicly available documents relevant to their 

government service. Everyone, we believe, benefited from the review ofthat material, 

which assisted Senators in fulflllil1g their responsibilities of advice and consen!. 

Similarly, the Committee should have the benefit of publicly available information 

relevant to Mr. Keisler's tenure in the Reagan Administration, some of which may take 

some time to procure from, among other places, the Reagan Library. As Senator Frist 

said in an interview on Tuesday, "[Tlthe DC Circuit. .. after the Supreme Court is the 

next court in terms of hierarchy, in terms ofresponsibility, interpretation, and in terms of 

prioritization." We should therefore perfonn our due diligence before awarding a 

lifetime appointment 10 this uniquely important court. 

Finally, given the questionable need to fill the 11 th seat, 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. Indeed, every 

other Circuit Court nominee awaiting a hearing in the Committee, save one, has been 

selected for a vacancy that has been deemed a "judicial emergency." We should turn to 

those nominees first; emergency vacancies should clearly take priority over a possibly 

superfluous one. 

Given the singular importance ofthe D.C. Circuit, we should not proceed hastily 

and without full information_ Only after we rea.sess !he 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. 

We thank you for your consideration of this unanimous request of Democratic 

Senators. 

Sil1CereIY'C~ S~ 
72 

· . ~J~ ......-. ~ A • 

. -~-,-~-~-.- _--'-... -- ~~-

- ~mb ¥JL /trJ.. · 
73 

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 Brook-
74 

ings 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. 
75 

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 unani-
76 

mously 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. 
77 

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 share-
78 

holders 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. 
79 

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. 
80 

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 
81 

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. 
82 

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. 
83 

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 case-
84 

loads 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. 
85 

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 
86 

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 courtpacking 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. 
87 

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 
88 

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. 
89 

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 
90 

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.] 
(91) 

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 shortstaffed.’’ 

So our first inquiry is to ask what is the evidence the D.C. Circuit is ‘‘shortstaffed’’ 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. 
92 

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.’’ 
93 

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 secondhighest 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 
94 

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. 

f 
95 

flono,able Sob Good illl~, Chall 

KMofable John eM)"," , R~n.ing Member 

Ho~s<: Commilt,.. On I~ t JUdkiilf)' 

Unile~ SUt~ Hou,@ of Rep.e$~ nU' ts 

W.shlnJlon, D,C, 10515 

1>00 11~'JI.nl "'/i . \\IO .. !rO' !f/;!I;>NOC: l(J(I~ 

CI"'" mf-~ ' I.'. Nl·no6H< ' WffflI\i<U<,a)f;!,lIT~llOIj 0lI<o 

October 31, 20)1 

we •• ewr~ing n rega rd Ie le>1lfl1Onv bv Amb ~.s;, der C, Bovd"n GravallhJudiclary 

Committee', Octeb .... 29 hea,lng on Ihe th,ee CUff""t vaconde. on the U.S. Coml of App .. al, 

10' the DI",kt 01 Columbi •. 0 1inll an art"J" we co·aulloo,ed, M •• G~y.n ib"led!o the two of 

u. an argument <en"f l lo hi. ' e.,lm""'l, ",melV, InOi Presldenl Dbam •• ubmlned nomlnalloM 

10 mrl~e.e Ih'ee v.<and". 1n orde r to . dvlflu hi, .dm "~l en'. poticy "ienda - .peciflcallv, 

10 a<l u,e judlcl.'llalkl. ll"" 01 pertln .. n, EPA Clean AI, Act ' .. gul.tlon •. "A, proponent. oflhe 

nomin.,"'n. h;we po/nled DlJr.- Mr,.GrIY ,taled, tiling our ""lei",' ' it ... IIG occident thaI 

Dbam. ''<judklal flomln" IO<I b .. r~ I"- f"lIow~d i. s, .! ~ of 'h Union promlO# '~o' 'II(M.,p .... 

won', ad' on c!iml! ~ ch~n8e, ' I will "" IEmphn\, added.) 

Mr. G .. ~ h.'~ ml'ICharacterl, ed ou' artlel., Acco,dln,g/y, _ ,~q 1 thl! Ih l. lell~r be ~cl"d.d 

in Ih. "uons r.rnrd, to .et ~ 1~iBh!. 

Now".,. <lot, our '''d~ " . ,, Dr lmply that p,ulaen, Ob.",. ', ubm'~>on of nominee. IOf , h. 

D.C. Circui! wa. mo,l.o,ea by con.ldeflUon, dilf r.nt f,om 0' I .... ,pproprl. ,. Ihan tllose 

which hav~ I.d him and elltryoth/ pre.ldenl in "urM .. "ry 10 lullm Ihelr <Qn llltu' '''n.1 dulY of 

nominatin. qualified Ind""d"al, 10 th~ fed.r.' court •. In fact, lhe article w. s (omplet"d well 

belOfe ,,,.th, •• p.ndln.ll nomination. w",e made, and, Ind.ed, befo't Pr",'den\ Ob, m.', li"" 

D.C. CJrcull ""min,.., S,lS,'nlv •• an, wa.con/inned by . gB·O","ela r",,'1 which Mr. G,ay 

noU" wilh apparenl appro ... lj. To be ... re , our ."ide.dld nol.lhe «illc. 1 position that the O,c. 

CI,,,,I! command. with r. 'p""t to enVlronment.1 '011"10110<1 - .n un, .r ~. e point. 8iven 

Ihot o rouit'. exclu,lVe jurlsdiclion over EPA ,egulallon' Impl"",enlln8 Ih. dun Air A<:\ ilS well 

a. other envlronm"nt.l law •. W .. al' o nol.d . poor", decl1ion. Ihot .upport Ihe oblo"",otions of 

""pert. like 5!t'Ven Po .. lslein, Pull"e, PtI''' ..... innl~g <olumnl .. and now ~ p,ofeUOI ~t Georlle 

Mason Un llltf5]IV, th.t on Ih ~ D.C. Orouil, ' a n~w br,..d of acnIMtjudgH aN' waling. 

del .. ,mln.d war on fed .... al regul.,or'll ~80nci~I" And W. <e'll inly \potlIJllI. d Ihe evert 

ob" ' ''Cllonlsm, dtilltn by u p,e" pomlc"l""d IdeoI081"" , a~I", on, b~hind <erial S<!nate 
96 

f 

fillbusters of distinguished Obama nominees, such as today's rejection of cloture for D.C. Circuit 

nominee Patricia Millett, one of the nation's pre-eminent Supreme Court advocates. 2 

But we certainly do not endorse Mr. Gray's ascription of inappropriate motives to President 

Obama's nomination of outstanding judicial candidates such as Patricia Millett. Nor will such 

nominees, if confirmed, be any less fair, independent, and broadly respected than they have 

already proven themselves in their current professional roles. Nothing in our article lends any 

support whatsoever to Mr. Gray's regrettable insinuation to tne contrary. 

We appreciate your including this letter in the Committee's hearing record. 

Sincerely, 

Doug Kendall, President, Constitutional Accountability 

Center 

7J~ Simon lazarus, Senior unsel, Constitutional 

Accountability Center' 

2 As acknowledged by Senator Ted Cruz to the nominee during her confirmation hearing, "irrespective of your very 

fine professional qualifications ... [yJou find yourself in the midst of a broader battle. And a battle on issues sadly 

that have consumed the D.C. Circuit for decades ... There is a lot of political games when it comes to judicial 

nominations, both sides have decried the political games. . [UJnfortunatelythe D.C. Circuit has been a 

battleground on both sides, for the politicization of judicial nominations," 
97 

BOYDEN GRAY & ASSOCIATES PLLC 

1627 I STREET, NW, SUITE 950 

W ASIIINGTON, DC 20006 

PHONE (202) 955-0620' FAX (202) 955-0621 

November 5, 2013 

Honorable Bob Goodlatte, Chair 

Honorable John Conyers, Ranking Member 

House Committee on the Judiciary 

United States House of Representatives 

Washington, D.C. 20515 

Re: Hearing: "Are More Judges Always the Answer?" 

In my prepared statement, I wrote, "As proponents of the nominations 

have pointed out, it is no accident that Obama's judicial nomination barrage 

followed his State of the Union promise that 'if Congress won't act' on climate 

change, '1 will.' ,,1 1 cited for this proposition an article by Doug Kendall and Simon 

Lazarus of the Constitutional Accountability Center that reproduces the quoted 

portion of President Obama's address 2 

Mr. Kendall and Mr. Lazarus then wrote to this Committee to 

complain that T had unfairly attributed to them the argument that "President Obama 

submitted nominations ... to assure judicial valida tion of pertinent EPA Clean Air 

Act regulations. ,,3 

But a quick look at their article proves the point they now dispute. 

They do not deny (1) that they are proponents of the President's nominations, (2) 

that they believe confirming new D.C. Circuit judges would help to entrench the 

President's regulatory achievements, or even (3) that this was the motive for 

I Are More Judges Always the Answer?, Hearing Before the H Comm. On the Judiciary (Oct. 

29,2013) (statement of Amb. C. Boyden Gray), at 5. 

2 Doug Kendall & Simon Lazarus, Broken Circuit, THE ENVTL. FORUM 36 

(MaylJune 2013), available at 

http:// theusconstitution. org/ sites/ defa ult! files /briefs /The%20 Environmental %20 F 

orum%20- %20Broken%20Circuit. pdf. 

3 Letter from Doug Kendall & Simon Lazarus to the House Committee on the 

Judiciary 1 (Oct. 31,2013). 
98 

House Judiciary Committee 

November 5,2013 

Page 2 

President Obama's recent nomination blitz:' Apparently their argument is that their 

article did not expressly say so. 

But what other implication can be drawn from their observations 

that in the face of "gridlock on Capital Hill" over proposed 

climate legislation, the President chided Congress for its 

inaction and announced that "if Congress won't act soon to 

protect future generations, 1 will,"5 

that "the Obama administration's effort to use the [Clean Air 

Act] to address global warming runs th[r]ough the D.C. 

Circuit,"6 and 

that the likely "trump card ... in the outcome of ... fights" 

over new and forthcoming environmental regulations "is the 

makeup of the D.C. Circuit"77 

If this narrative does not "point out" the connection between President 

Obama's promised D.C. Circuit nominations and his Clean Air Act climate change 

agenda, it is hard to imagine what would. It leaves no doubt that President Obama's 

recent nomination blitz was intended to cement his Administration's regulatory 

actions. Indeed, that is exactly what Mr. Kendall and Mr. Lazarus urged. 

The irony in all of this is that the D.C. Circuit has been nothing but 

deferential to the Obama administration and its regulations. Indeed, according to 

statistics maintained by the Administrative Office of U.S. Courts, the D.c. Circuit 

has reversed administrative agencies less during the Obama years (16.7%) than it did 

during the Bush years (18.8%). And, as even Mr. Kendall and Mr. Lazarus are 

forced to admit, President Obama's signature climate change regulations were 

upheld by a unanimous panel of the D.C. Circuit, includingjudges nominated by 

presidents of both parties . 

.j Mr. Kendall and Mr. Lazarus reject any "ascription of inappropriate motives to 

President Obama's nomination[s]," Letter, supra note 3, at 2, but they clearly do not 

believe that stacking a court to preserve an Administration's regulatory agenda is an 

improper motive. Indeed, the whole point of their article is to "rally" the troops 

around the President's D.C. Circuit nominations to cement "the future of 

environmental law. " 

5 Kendall & Lazarus, supra note 2, at 36. 

6 !d. at 36. 

7 Id. at 37. 

BOYDEN GRAY & ASSOCIATES PLLC 

1627 I STREET, NW, SUITE 950· WASIDNGTON, DC 20006 
99 

f 

House Judiciary Committee 

November 5,2013 

Page 3 

These inconvenient details seem to have escaped Nan Aron, my fellow 

panelist before this Committee, who looked at the D.C Circuit's recent 

administrative law decisions selectively, ignoring the vast majority in which the court 

ruled for the Administration and complaining about a few specific cases in which she 

disliked the result. Ms. Aron reserved her strongest censure for an opinion by Judge 

Brett Kavanaugh vacating the Cross-State Air Pollution Rule. Nan Aron cited this as 

an example ofD.C Circuit bias against the current Administration and said that the 

court's decision was costing thousands of lives every year. This is ludicrous. The 

court invalidated the CSAPR because it could have required some states to make up 

for other states' pollution and because it imposed Federal Improvement Plans 

without first giving states a chance to come up with their own as the Clean Air Act 

requires. But the court left in place the rigorous cap and trade system of the 

predecessor Clean Air Interstate Rule, which the EPA continues to administer 

"pending the promulgation of a valid replacement." Nothing prevents the agency 

from rewriting the rule to follow the law. 

Sincerely, 

BOYDEN GRAY & ASSOCIATES PLLC 

By: C Boyden Gray 

cbg@cboydengray.com 

BOYDEN GRAY & ASSOCIATES PLLC 

1627 I STREET, NW, SUITE 950· WASIDNGTON, DC 20006 
100 

;;!~ . ( . ••• • 

' .' - JUDICIAL :'\'FE RE ~CE OF THE ur'nTED STAT ES 

TU. ClHtF /l'Sn CE 

o. nI E!l MTEDST~Tf.'i 

..... 

IIOllOl'llbie Bob 000<1101\" 

Cllainlla>\ 

CammillCi: rill 1M Judi<:i~1)' 

WA~IIING"'ON. O,c, ~~ 

Nov~,"bc, 15, 2013 

United SIU(eS HolIS( of J(tpr=tuh'O$ 

W ... hinglo".I>C 20515 

l)oar Chairman GoodIAlI,,; 

'IO"ORAII!.E 10111< D 1<\,.." 

~-

On bchalr"f,hc Judicial c"nremJccoflhe UnilN StatU, I "rile 10 rcquesl th;,llhis leU., 

be made pan of lhc record ur,,,,, hearing hrld on (k:lIlber 29. 2013, entilh:d "Ate Ot~ Judg« 

Always theAnswdr' 

Tho htlllitlG' ~ brood litlc 51'1:110'" ,hal 'he f«us ,",'(luld tum, ~II nn Ihc .i,. oflhe 

f.Mral bc .... h.noo whether, in Ilgl1t ofillc .toadily.inc",a.;inll worlciQad of the Fed.,..1 JudlclillY. 

morejudg"'hips should be """"d. 11\d~, since ,he las'lXIflIplOhcnsi"" jud"c.,hip bill WlI5 

~ in 1m. Aniele II I di.,rict L'OuIU 1\11,,<= $ttn a 39 p"''''tnl Growlh in CasclOM whiled",u;, 

coun f,lings have risen by 34 pere"m. Ove. Ih;s same I;me. 1,,, ... ,,, .••• lhe fedo!r.ll bench has only 

S«'" four ",-m:1>1 increase In diS1rlci courtjudJ,,'csh;ps while lhe numbc:rofclfCu;I coun 

judgeships h>l:$ remained unchangro. 

To del.rmine Ih c~lml of Ihejudici!lt)"&judgt!lloil' needs. lhe Jlldidal Confer.:nec: 

""ndoc'" lUI c~Icns;"e bicnnial """'''Y uri'" .uum. n,is ''''''cy include.. inpu' from individual 

couros and c;.cui!judicio.] council" and ,''' Confcrt1>Ce's Comm[ll"" l)fl judicial Resources. and 

invnlv.s ananal)"s;s of cBs<:load dma using a vMi.,y ofrbCl0rs. The ",."lts "r,he mOJlI .etenl 

survey ","".0 appro"M by III< Conr •• encc thrs paO! M=h and lranl;mlllN 1<1 Con~.«. em AprilS. 

2013. 

As il lumttl OUI. ho",-.,ve., Ihe ".:uing f""used on ... he,lo .. certain vacanci.sOll $pc<:iFic 

I)(.IW1li should rcmain u"fiUed. Re;sltn:ll= IIfhll'" thusr particula. vocanc:;cs arc Viewed, the 

Judiclll Conl"",ncc hilS dClcrrni,..d thai addilionaljoogeships"'" needed fOf certain 00""1 \OnO(\S 

Iht counlry. The l"CI:omnl"ndatiun' tit<! Inad. on 11,. premise tha!th.re an: no ,·scancies. and 

W<l1klood c3iculatiorul arc based "" th~t 5Sumjlli"n . Whe,e vacanc;es ,,~i" . the. actual ""dudge 
101 

Æ