GRAY: Obama packs D.C. Circuit, threatens political balance

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ANALYSIS/OPINION:

Last week the Senate Judiciary Committee approved the nomination of Nina Pillard to the U.S. Court of Appeals for the D.C. Circuit. That party-line vote followed the committee’s hearing earlier this month on District Judge Robert Wilkins’ nomination to the D.C. Circuit, the committee’s party-line vote in favor of Patty Millett’s nomination in August, and the Senate’s confirmation of the D.C. Circuit’s newest judge, Sri Srinivasan, in May. If this sounds like an unusual flurry of activity for one tiny court, that’s because President Obama has made tilting the court’s political balance a high priority for his second term.

It’s an unfortunate strategy for several reasons.

First, the D.C. Circuit doesn’t need more judges. According to one judge on the court, “[I]f any more judges were added now, there wouldn’t be enough work to go around.” That sentiment is confirmed by statistics provided by Chief Judge Merrick Garland, a Clinton appointee to the court. Over the past decade, the number of argued cases per active judge has fallen, and the court’s six senior judges do more work than their counterparts on other courts, who tend to be older.

This sudden drive to pack the D.C. Circuit is especially troubling in light of what Supreme Court Chief Justice John G. Roberts Jr. has called an “urgent need” for judges on other courts. One wonders whether the Obama administration’s energy on judicial nominations could be better directed elsewhere. A bill proposed by Sen. Chuck Grassley, Iowa Republican, would do just that — transfer three unnecessary seats from the D.C. Circuit (one of which has never been filled) to courts that need them.

Even worse, the president’s recent nomination spree risks politicizing an institution that is — and should be — above politics. More than any other court, the D.C. Circuit considers petitions for review of federal agency rules and orders — some of the most important and least glamorous cases in the federal judiciary. To its credit, the court has, for the past two decades at least, fulfilled this important role thoughtfully, quietly, and with collegiality, a trait that manifests itself, Judge Harry Edwards has written, when “judges have a common interest … in getting the law right,” and as a result, “are willing to listen, persuade and be persuaded, all in an atmosphere of civility and respect.”

Collegiality of this sort does not happen by accident, and sadly it has not always characterized the D.C. Circuit, which Justice Felix Frankfurter once called “a collectivity of fighting cats.” Judge Edwards, who was nominated to the court by President Carter in 1979, 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.”

That noxious atmosphere persisted until Judge Edwards assumed the chief judgeship in 1994 and led a successful reform that stressed collegiality. Shortly before taking senior status last year, Judge Douglas H. Ginsburg, a Reagan appointee, declared that “the level of collegiality has increased steadily over the years and continues to be a robust and pleasant feature of service on the court.”

That collegiality would likely be lost if the Senate were to confirm three more unneeded judges. First, judges appointed to prop up the president’s regulatory agenda historically end up actually doing so out of misplaced loyalty. 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.” As proponents of the current nominations have noted, it is no accident that Mr. Obama’s recent nomination barrage followed his promise that “if Congress won’t act” on climate change, “I will.”

But more fundamentally, bloating the bench would undermine the close working relationship that contributes to collegiality. “[S]maller courts,” Judge Edwards has noted, “tend to be more collegial.” Absent a growing caseload, it is hard to justify the risk of factionalism inherent in larger courts, like the famously dysfunctional Sixth Circuit with its 28 active and senior judges. It would be a tragedy to lose the D.C. Circuit’s collegiality and objectivity that have served our country so well since Judge Edwards‘ reforms two decades ago.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. “Arbitrary and Capricious” runs monthly.

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