D.C. Circuit Court Nominee Faces Scrutiny

Statement

Nominations to the D.C. Circuit deserve special scrutiny. Many view this court as the second in importance only to the Supreme Court of the United States. The Court of Appeals for the D.C. Circuit hears cases affecting all Americans. It is frequently the last stop for cases involving federal statutes and regulations. As we all know, Judges who sit on this court are frequently considered for and have been elevated to the Supreme Court. So there is a lot at stake with nominations to this court.

This seat, to which Ms. Halligan is nominated, became vacant with the elevation of John Roberts as Chief Justice of the United States in September 2005. Peter Keisler was first nominated for the seat in June of 2006.

His nomination stalled in committee in both the 109th and 110th Congress. Mr. Keisler was eminently qualified to serve on that court. He had a distinguished academic and professional record. His public service included serving as Acting Attorney General. Despite his qualifications, Mr. Keisler waited 918 days for a committee vote, which never came.

At the time of his hearing Democrats objected to even holding a hearing for the nominee. One of my Democrat colleagues on this committee summarized the threshold concerns. He stated:

"Here are the questions that just loom out there: 1) Why are we proceeding so fast here? 2) is there a genuine need to fill this seat? 3) has the workload of the DC Circuit not gone down? 4) should taxpayers be burdened with the cost of filling that seat? 5) does it not make sense, given the passion with which arguments were made only a few years ago, to examine these issues before we proceed?"

I have not heard these concerns expressed by my colleagues on the other side with respect to the nomination that is before us now. But that does not mean that these issues have gone away. I have great concern about the need to fill existing vacancies on the D.C. Circuit. Senator Sessions and I recently sent a letter to Chief Judge David Sentelle, concerning caseload statistics over the last five years. On February 23, 2011, we received his response indicating that he had directed the Clerk of the Court to promptly obtain that data and provide it to us.

While we have not received a final response, statistics from the Administrative Office of the U.S. Courts show that caseloads of the D.C. Circuit have decreased markedly over the last several years. This decrease is evident in both the total number of appeals filed and the total number of appeals pending. Specifically, the total number of appeals filed in the U.S. Courts of Appeals for the District of Columbia Circuit decreased by over 14 percent between 2005, when 1,379 appeals were filed, and 2010, when 1,178 appeals were filed. Meanwhile, with a smaller court, more appeals were terminated during this period. The total number of appeals pending was reduced from 1,463 appeals to 1,293 appeals. This is a decrease of nearly 12 percent.

The workload decline is also demonstrated in the per panel and per judge statistics. Filings per panel and filings per judge show a decline of nearly 7 percent during this period, as well. Pending appeals per panel dropped over 9 percent. Interestingly, the D.C. Circuit ranks last among the circuit courts in 2010 in this category. That means it has the lightest workload, per panel.

Given the reduced workloads, we should be having a discussion on reducing the staffing for this court, not filling a vacancy. This seat is not a judicial emergency; in fact, there is an argument to be made that this seat is unnecessary. With our massive debt and deficit, why should we spend any resources to fill the seat? I cannot justify that expenditure.

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