With the President characteristically nominating moderates to the bench whose records raise no substantive objections, and without a majority in the Senate, the Republicans’ main weapon remains the filibuster.
But Sen. Chuck Grassley, Republican of Iowa, has come up with a new tool: a proposal to cut three seats on the DC Circuit while adding two elsewhere. In a curious claim, Grassley argued that having one fewer federal judge will lessen the workload on the rest.
Grassley rests his case on the fact that the DC Circuit handles far fewer cases than other federal appeals courts. But there are several big holes in his argument for efficiency and fairness:
- The DC Circuit’s cases are more complex than those arising in other parts of the country, and often more influential. Chief Justice John Roberts has written, “It is when you look at the docket that you really see the differences between the D.C. Circuit and other courts” (PDF article).
- The Judicial Conference, which is the voice of federal judges, asked for more appointees elsewhere than Grassley’s bill would provide, but didn’t suggest a reduction in the DC Circuit (PDF letter).
- As Doug Kendall pointed out for Reuters, Grassley “proposed that his bill take effect immediately on passage, rather than at the start of the next presidential term—which is the usual practice.” In other words, it’s an unprecedented limit on this President.
- In his first thirty years in the Senate, Grassley never tried to shrink the DC Circuit Court so drastically. Only now that President Obama faces three openings on the DC Circuit does the senator perceive a need for—what a coincidence!—three fewer seats.
Grassley has complained, “members on the other side were convinced seats didn’t need to be filled a few years ago.” But according to the Washington Post, that refers to bills aimed at reducing the DC Circuit to its current number of eleven judges, not to eight. (Grassley voted for that particular bill, but it died in the Republican House.)
Tussles over judicial nominations are common in the American system, of course. There’s plenty of hypocrisy in that area, but Grassley’s bill is more hypocritical than other efforts.
Furthermore, his performance went beyond hypocrisy into hysteria when he claimed five times in one hearing that President Obama was “packing the court.” As Sen. Sheldon Whitehouse and numerous commentators reminded the Iowan, that term refers to Franklin D. Roosevelt’s proposal to change the number of seats on the Supreme Court so he could appoint more justices. Grassley was actually born in the year Roosevelt took office, so he really should remember that history better.
The only person trying to change the number of judges on a court to affect their decisions is Sen. Grassley himself. In implying that President Obama was trying to do the same, he exhibited the dissociative symptoms of OIP Derangement Syndrome.