The U.S. Constitution is clear on the subject, there will be the establishment of federal courts, and the 7th Amendment guarantees our access to those courts should we decide to bring a suit the value of which is over $20.00 — big money back in 1789. Further, the Constitution assumes that these courts will function equitably, with no advantage given to one side or the other. The 6th Amendment guarantees a “speedy and public trial” in criminal cases, and we can safely assume the founders intended to avoid protracted entanglement in our civil proceedings. Our Republican contingent in the U.S. Congress has other ideas.
“Backed by House colleagues and GOP attorneys general from around the country, Senate Republican leaders are whipping opposition to advancing the nomination of Patricia Millett — or anyone else — for the D.C. Circuit Court of Appeals, which is one notch below the Supreme Court and often has the final word on matters of executive authority.” [TPM]
Why? Because the Republicans argue that the D.C. Circuit Court of Appeals has too many judges assigned to it, and therefore — in terms that are Orwellian in their essence — to appoint new members to fill vacancies is to “pack the court,” a blatant attempt to obfuscate the issues by comparing the appointment of judges to fill vacancies is equatable to FDR’s proposal to add members to the U.S. Supreme Court.
The Numbers Game
At the heart of the current controversy is the D.C. Circuit Court of Appeals which has 11 judgeships, and three vacancies. Granting that the D.C. Court of Appeals has the lightest workload in the circuit system, with 1189 appeals filed in 2011 and 1,200 filed in 2012 [UScourts pdf], the number of judges in itself doesn’t make the case for a reduction in the number of judges when it is noticed that there are 1,287 cases pending from 2011 and another 1,369 from 2012. Indeed, the number of appeals filed and the number of cases pending could be used to support the contention that the appointment of more judges would be helpful to deal with the backlog.
In fact, the 9th Circuit, which has the largest number of cases and judges (3.9% increase in cases filed 2011-2012), has two vacancies and has been slogging along, able to reduce its pending cases by only -0.1%. [UScourts pdf]
The situation at present is that there are 874 federal judges, and there are 91 vacancies (17 circuit courts of appeal & 74 district courts). Worse still there are 37 instances defined by the U.S. Courts to be “judicial emergencies.” A judicial emergency is defined as:
Circuit Court any vacancy in a court of appeals where adjusted filings per panel are in excess of 700; OR any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel.
District Court any vacancy where weighted filings are in excess of 600 per judgeship; OR any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; OR any court with more than one authorized judgeship and only one active judge.
Not to put too fine a point to it, but if U.S. citizens have cases before their federal courts they are in some danger of being in the “Justice Delayed Is Justice Denied” category as they wait for openings in dockets for the adjudication of their cases where there is a Judicial Emergency. Even in the D.C. Circuit Court of Appeals in which there are three vacancies and two nominations, the lack of three judges means slower decisions — delayed is, in essence, denied.
A look at the chart above lends credence to Senate Majority Leader Harry Reid’s (D-NV) comments on the matter:
Senate Republicans were happy to confirm judges to the D.C. Circuit when Presidents Reagan and George W. Bush were in office. But now that a Democrat serves in the White House, Republicans want to eliminate the remaining three vacant D.C. Circuit Court seats, although the court’s workload has actually grown since President Bush was in office,” he said. “Republicans are using convenient but flawed political arguments to hamstring this vital court and deny highly qualified nominees like Ms. Millett a fair up-or-down vote.” [TPM]