Republicans Looking to Shrink the Judiciary

Ben Terris
National Journal

The same day President Obama nominated three people to fill vacancies at the country's second-most important court, a Republican congressman dropped a bill that would keep him from ever doing so.

Rep. Tom Cotton of Arkansas's "Stop Court Packing Act" would forever eliminate the three positions, keeping the District of Columbia Court of Appeals with just eight judges. Republicans are pitching the idea because they don't want the court—which has the task of dealing with government agencies and regulations—to become a "rubber stamp" for the Obama administration.

But, just because it's politically motivated, doesn't necessarily mean than Cotton (and Iowa Sen. Chuck Grassley, who has a similar bill in the Senate), isn't without a point. The Republican claim is this: this court has fewer pending cases per judge than all but two of the 11 other circuit courts, and the fewest cases per three-judge panel. There are 33 other district and appellate courts in the country that qualify as "judicial emergencies" by the non-partisan Administrative Office of the U.S. Courts, but the D.C. court of appeals is not one of them.

"In the private sector, getting rid of these jobs would be a no-brainer," Cotton said in an interview. He then ticked off some simple (and rough) math: "We're talking about $200,000 for a judicial salary, most judges have about five employees making somewhere around $50,000 each, plus benefits. We're talking about around $600,000 a year for twenty years times three. We're talking about millions of dollars wasted on unnecessary jobs."

Not so fast, say opponents of Cotton's bill. Sure, the court may have fewer cases on the docket than others, but they also have some most complicated and time-consuming. Perhaps the best way to compare this court to others is the number of actions filed per panel. In categories like prisoner and criminal appeals they rank at the bottom. But on administrative cases, which are often much more complex, they get the third most appeals filed.

'The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans' lives," former chief judge of the court wrote earlier this year in the Washington Post. "These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and intervenors, and necessitating dozens of briefs and thousands of pages of record – all of which culminates in lengthy, technically intricate legal opinions.'"

In fact, the Judicial Conference of the United States, headed by Supreme Court Chief Justice John Roberts, sent a letter to the Senate Judiciary Committee this year recommending that the court maintain all 11 of its seats on the bench.

It's hard to know exactly what the workload of the D.C. court is compared to others, says Russell Wheeler of the Brookings Institution.

"That's the $64,000 question," he said. "There is not a comparable measure out there, so everyone is looking for surrogate measures."