[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                   ARE MORE JUDGES ALWAYS THE ANSWER? 

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 29, 2013

                               __________

                           Serial No. 113-53

                               __________

         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                            C O N T E N T S

                              ----------                              

                            OCTOBER 29, 2013

                                                                   Page

                           OPENING STATEMENT

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1

                               WITNESSES

The Honorable Charles E. Grassley, a U.S. Senator from the State 
  of Iowa, and Ranking Member, Senate Committee on the Judiciary
  Oral Testimony.................................................    33
  Prepared Statement.............................................    35
C. Boyden Gray, former White House Counsel, George W. Bush, 
  Boyden Gray & Associates PLLC
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Nan Aron, President, Alliance for Justice
  Oral Testimony.................................................    50
  Prepared Statement.............................................    52
Carrie Severino, Chief Counsel and Policy Director, Judicial 
  Crisis Network
  Oral Testimony.................................................    55
  Prepared Statement.............................................    57

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Joe Garcia, a Representative 
  in Congress from the State of Florida, and Member, Committee on 
  the Judiciary..................................................     4
Material submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Committee on the Judiciary.........................    65
Material submitted by the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    70

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................    91
Letter from the Constitutional Accountability Center (CAC).......    95
Supplemental Material from C. Boyden Gray, former White House 
  Counsel, George W. Bush, Boyden Gray & Associates PLLC.........    97
Letter from John D. Bates, Secretary, the Judicial Conference of 
  the United States..............................................   100


                   ARE MORE JUDGES ALWAYS THE ANSWER?

                              ----------                              


                       TUESDAY, OCTOBER 29, 2013

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 2:48 p.m., in room 
2141, Rayburn Office Building, the Honorable Bob Goodlatte, 
(Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Coble, Smith of Texas, 
Bachus, King, Franks, Poe, Marino, Gowdy, Amodei, Holding, 
Collins, DeSantis, Conyers, Scott, Johnson, and Garcia.
    Staff present: (Majority), Shelley Husband, Chief of Staff 
& General Counsel; Allison Halataei, Parliamentarian & General 
Counsel; David Whitney, Counsel; Branden Ritchie, Deputy Chief 
of Staff & Chief Counsel; Kelsey Deterding, Clerk; (Minority) 
Perry Apelbaum, Minority Staff Director & Chief Counsel; 
Danielle Brown, Parliamentarian; Susan Jensen, Counsel.
    Mr. Goodlatte. The Judiciary Committee will come to order. 
Without objection, the Chair is authorized to declare recesses 
of the Committee at any time.
    The Ranking Member has stepped out, as has the gentleman 
from Virginia, for two different missions. I expect them both 
to return, and we are grateful to have the gentleman from 
Florida with us, but we think we will go ahead and proceed with 
the hearing, and I will recognize myself for an opening 
statement, and then Mr. Conyers when he returns.
    On June 4, the President nominated three individuals to a 
single circuit court. These nominations, together with the 
recent confirmation of another, are intended to pack the D.C. 
Circuit to its absolute capacity of 11 authorized judgeships.
    Given that, first, each judgeship costs taxpayers more than 
a million dollars a year; second, that there are eight 
vacancies designated as emergencies on our nation's circuit 
courts and the President has not submitted a nomination for the 
majority of these positions; the D.C. Circuit's workload has 
steadily dropped over the years; and the court has six active 
senior judges who contribute substantially to its work; it is 
appropriate to ask whether filling these judgeships is the 
highest and best use of limited taxpayer dollars and to 
consider alternative explanations as to why the President has 
decided to pursue such an aggressive and virtually 
unprecedented strategy with respect to these vacancies.
    In announcing his nominations, the President asserted, ``If 
we want to ensure a fair and functioning judiciary, our courts 
cannot be short-staffed.'' So is this court in need of a 
dramatic expansion?
    In absolute numbers, it has the lowest number of total 
appeals, with 1,193. That is down more than 13 percent from 
2005. Measured by the number of oral arguments heard per active 
judge, it dropped from 99 cases in 2003-2004 to 81 recently.
    In terms of signed written decisions per active judge, the 
court averages 17, less than one-third the national average of 
58.
    The court clearly has the lowest caseload in the country, 
and we aren't even considering the work of the six senior 
judges on the D.C. Circuit who are estimated to do the work of 
three-and-a-quarter full-time active judges.
    If the court isn't short-staffed, why are the President and 
his allies so determined to fill it up?
    But before examining that, let's review the Keisler 
standard for the D.C. Circuit vacancies articulated by eight 
Democratic senators in a July 27, 2006 letter. At the outset 
they stated, ``Mr. Keisler should, under no circumstances, be 
considered, much less confirmed, by the Committee before we 
first address the very need for that judgeship and deal with 
the genuine judicial emergencies identified by the Judicial 
Conference.''
    They asserted, ``by every relevant benchmark, the caseload 
for that circuit has only dropped'' and insisted ``before we 
rush to consider Mr. Keisler's nomination, we should look 
closely at whether there is even a need for this seat to be 
filled and at what expense to the taxpayer.''
    What criteria did those Democratic senators endorse to 
measure the judicial workload? One, written decisions per 
active judge; two, number of appeals resolved on the merits per 
active judge; and three, total number of appeals filed.
    Since 2005, these numbers are significantly down in two out 
of three categories for the D.C. Circuit.
    In closing, they emphasized the letter reflected the 
unanimous request of Democratic senators. So the Keisler 
standard is the standard of ``all Democratic senators.'' That 
standard, when applied honestly and consistently, leads to one 
conclusion: the D.C Circuit doesn't need additional judges.
    So our colleagues in the other body took a firm position. 
Or did they? Consider one Senate Democrat's recent comments 
about the D.C. Circuit, who told an audience in March, ``Our 
strategy will be to nominate four more people for each of those 
vacancies.'' And, ``we will fill up the D.C. Circuit one way or 
another.'' That doesn't sound like he is concerned about the 
court's caseload.
    A few months later, some groups united behind this effort, 
complaining that a majority of the court's senior judges, who 
still can and do decide cases, were appointed by Republican 
presidents. That doesn't sound like they are concerned about 
the court's ability to function, either.
    But sadly, this isn't the first time the President and his 
allies have packed a circuit court with unneeded judges at a 
time when its workload is declining. The Fourth Circuit has 
actually canceled argument dates for two successive months 
because the court ``did not have cases needing argument on 
Friday in October or December.''
    As recently as December 2007, there were only 10 active 
judges on that court. Today, there are 15. Of that number, six 
were nominated by the President and confirmed by the same 
Democratic senators who wrote so earnestly about their regard 
for taxpayers shortly before.
    The Fourth Circuit's total appeals filed are down 7 percent 
since 2006. Twelve judges handled the higher caseload back 
then. Since that time, there has been a 25 percent increase in 
judges. Looking at the caseload, that doesn't explain this.
    Maybe the President and Senate Democrats see judicial 
authorizations as a floor, not a ceiling. Maybe also their view 
is that the courts exist not merely to resolve cases and 
controversies but to advance their political agenda. When the 
Senate Majority Leader said, ``We're focusing very intently on 
the D.C. Circuit'' and ``We need at least one more. There's 
three vacancies. And that will switch the majority,'' he 
clearly wasn't referring to the court's needs.
    The campaign to politicize our courts and to specifically 
target the second-highest court in the land risks not merely 
wasting scarce public funds but something more valuable, public 
confidence in the judiciary's independence.
    The evidence is clear: this campaign has nothing to do with 
fair and functioning courts. It has everything to do with 
ideology and power politics.
    And the Ranking Member now being present, I will ask the 
gentleman from Florida if he would like to be recognized.
    Mr. Garcia. Thank you, Mr. Chairman, just for a moment.
    I would like to ask for unanimous consent to submit a few 
things into the record.
    The first is a Constitutional Accountability Center letter 
to Chairman Coons, Senate Judiciary Subcommittee, regarding 
caseloads and the need for judges worldwide.
    The second is the People for the American Way's ``The D.C. 
Circuit's Caseload: Countering the GOP's Hypocrisy and 
Distortion'' claims it is too light to justify having more than 
8 of its 11 seats filled.
    Number three, the statement from retired Chief Judge 
Patricia Wald before the Senate Bankruptcy Committee.
    And the fourth is a statement from Timothy Tymkovich, chair 
of the Committee on Judicial Conference before the Senate 
Bankruptcy Committee of September 10, 2013.
    Mr. Goodlatte. The Chair thanks the gentleman.
    Without objection, those documents will be made a part of 
the record.
    [The information referred to follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

                               __________

    Mr. Goodlatte. We are expecting Senator Grassley, one of 
our four witnesses, to arrive, but his schedule is complicated, 
as are the House Members'. Therefore, we will proceed with the 
witnesses who are already present, and we will welcome Senator 
Grassley when he arrives.
    If the witnesses would all rise, we will, as is the custom 
of this Committee, begin by swearing in the witnesses.
    [Witnesses sworn.]
    Mr. Goodlatte. Thank you very much. Let the record reflect 
that the witnesses responded in the affirmative.
    I will now proceed by introducing first Ambassador C. 
Boyden Gray, former White House Counsel to President George 
H.W. Bush and current founding partner of the D.C.-based law 
firm Boyden Gray & Associates, LLP.
    Ambassador Gray was appointed Special Envoy for European 
Affairs by Secretary of State Condoleezza Rice in January of 
2008. He was appointed as the United States Ambassador to the 
European Union by President George W. Bush in January of 2006.
    Ambassador Gray currently serves as a member of the Board 
of Directors at the Atlantic Counsel, the European Institute, 
and FreedomWorks.
    He received his J.D. from the University of North Carolina 
School of Law and his Bachelor's degree from Harvard 
University.
    We are now joined by Senator Grassley, so I will go back to 
the beginning and introduce him, and then come back and 
introduce Ms. Aron and Ms. Severino, and then we will come back 
to the senator for his testimony.
    So our first witness today is the Honorable Charles E. 
Grassley, senior United States Senator representing the State 
of Iowa for over 30 years. Senator Grassley currently serves as 
Ranking Member of the Senate Judiciary Committee, and also 
serves on the Finance, Agriculture, and Budget Committees.
    Prior to being elected to the Senate, Senator Grassley 
served in the U.S. House of Representatives from 1975 to 1981, 
and the Iowa House of Representatives from 1969 to 1975.
    Senator Grassley earned his B.A. and M.A. from the 
University of Northern Iowa, and pursued a Ph.D. at the 
University of Iowa.
    Our third witness is Ms. Nan Aron, Founder and President of 
Alliance for Justice, a national association of public interest 
and civil rights organizations. In her role, Ms. Aron has a 
particular focus on the judiciary. In 1985, she founded the 
Judicial Selection Project through Alliance for Justice. Prior 
to AFJ, Ms. Aron served as an attorney for the ACLU's National 
Prison Project. She also taught at Georgetown and George 
Washington University Law Schools.
    Ms. Aron received her J.D. from Case Western Reserve 
University School of Law and her B.A. from Oberlin College.
    And our fourth and final witness is Ms. Carrie Severino, 
Chief Counsel and Policy Director of the Judicial Crisis 
Network. In her position, Ms. Severino speaks and writes 
regularly on judicial issues, the Federal nomination process, 
and state judicial selection. She has also testified before 
Congress and briefed elected officials on these judicial and 
constitutional issues. In addition, Ms. Severino has experience 
as a law clerk to Justice Clarence Thomas of the United States 
Supreme Court and to Judge David Sentelle of the United States 
Court of Appeals for the D.C. Circuit.
    She received her J.D. cum laude from Harvard Law School and 
a B.S. in biology summa cum laude from Duke University.
    Welcome to all of you.
    Senator Grassley, it is particularly great to have you on 
this side of the Capitol, and you are welcome to give your 
testimony.
    Each of the witnesses' written statements will be entered 
into the record in its entirety. I ask that each witness 
summarize his or her testimony in 5 minutes or less. To help 
you stay within the time, there is a timing light on your 
table. When the light switches from green to yellow, you will 
have 1 minute to conclude your testimony. When the light turns 
red, it signals that the witness' 5 minutes have expired.
    Senator Grassley?
    Senator, if you don't mind, in keeping with the custom of 
this Committee, we have sworn in the other three witnesses 
before you arrived, and I neglected to do that. So if you are 
willing to be sworn in, as we always do with all of our 
witnesses in our hearings, do you swear that the testimony you 
are about to give shall be the truth, the whole truth, and 
nothing but the truth, so help you God?
    [Witness sworn.]
    Mr. Goodlatte. Thank you. Let the record indicate the 
witness answered in the affirmative, and now he is welcome to 
give his testimony.

TESTIMONY OF THE HONORABLE CHARLES E. GRASSLEY, A U.S. SENATOR 
FROM THE STATE OF IOWA, AND RANKING MEMBER, SENATE COMMITTEE ON 
                         THE JUDICIARY

    Senator Grassley. Mr. Chairman, Ranking Member Conyers, and 
Members of the Committee, thank you for this opportunity.
    Mr. Goodlatte. Senator, I think you may need to press that 
button.
    Senator Grassley. I have tremendous respect for the Federal 
judiciary. We need to preserve, protect and strengthen it. As 
legislators, we also have an obligation to be good stewards of 
the taxpayer's money.
    The Federal Government shouldn't expect a good result from 
simply throwing additional money at an issue, especially during 
these trying fiscal times.
    Fortunately, one of the best ways to strengthen the 
judiciary also happens to be the most cost-effective. I have 
been committed to reallocating judicial resources in more 
efficient ways for many years of the 33 years I have served on 
the Judiciary Committee.
    During the 1990's when I was Chairman of the Subcommittee 
on Administrative Oversight and the Courts, I led a multi-year 
effort to study the allocation of court resources, including an 
examination of court caseloads and the allocation of 
judgeships.
    There has been some controversy over the years regarding 
the D.C. Circuit, and some of that controversy has centered on 
the D.C. Circuit's caseload.
    My work on the court study ultimately led to a successful 
effort during the Bush Administration to remove a seat from the 
D.C. Circuit and reallocate to the 9th Circuit.
    There are two important points about that effort. First, 
Republicans--that is my party--worked to remove a seat from the 
D.C. Circuit while a Republican occupied the White House. 
Second, although the D.C. Circuit seat was removed immediately, 
the new seat in California did not take effect until January of 
2009.
    In other words, we took away from President Bush the 
opportunity to make that nomination. But we did not give him 
the opportunity to make an additional nomination to the Ninth 
Circuit. Instead, we delayed that authority until a new 
President could make that nomination.
    For additional context, I would like to remind people in 
2006, the other side--meaning the Democrats--argued that we 
should not fill any more than 10 seats on the D.C. Circuit 
based upon that caseload, and we have letters that will show 
that. So, they successfully blocked Mr. Keisler on that basis.
    Since that time in 2006, the caseload statistics have 
declined even further. They have fallen so much during the last 
few years that the caseload per active judge today, with 8 
active judges, is nearly the same as it was back then, with 10 
active judges.
    In fact, Chief Judge Garland, a Clinton appointee to the 
D.C. Circuit, recently confirmed that the caseload has 
continued to fall. According to Chief Judge Garland, the number 
of cases scheduled for oral argument per active judge has 
fallen steadily over the last 10 years. In 2006, there were 90 
cases scheduled for oral argument per active judge. By the 2012 
to 2013 term, the number had declined to 81.
    Moreover, other judges on the court confirm that the 
caseload simply doesn't merit additional judges. As one judge 
wrote to me, ``I do not believe the current caseload of the 
D.C. Circuit or, for that matter, the anticipated caseload in 
the near future, merits additional judgeships at this time. If 
any more judges were added now, there wouldn't be enough work 
to go around.''
    That is a current judge on the court saying, and so I say 
again, if any more judges were added now, there wouldn't be 
enough work to go around. Who is in a better position to know 
the workload than the judges themselves?
    Given that it seems so clear additional judges aren't 
needed, why then would this President nominate not one, not 
two, but three more judges to this court? Why would the 
President make an aggressive push to confirm judges that aren't 
needed? Remember, these judgeships come at a cost of roughly $1 
million per judge, per year, and these are lifetime 
appointments. So that is $1 million per year, for a lifetime 
appointment.
    Unfortunately, we know the answer. The other side hasn't 
been shy about the reasons.
    Four of the active judges on the court were appointed by 
Republican presidents, and four were appointed by Democrat 
presidents. But senior Members of the Senate majority have said 
they need to ``switch the majority'' on the court.
    So why is that? Why would they be intent upon switching the 
majority?
    Well, as one of the President's prominent allies put it, 
``The President's best hope for advancing his agenda is through 
executive action, and that runs through the D.C. Circuit.''
    And we have all heard the President pledge that if Congress 
doesn't act, then he will simply go around it through executive 
order. But, of course, that strategy works only if the D.C. 
Circuit rubber stamps those executive actions.
    So, Mr. Chairman, that is a cynical and ideologically 
driven approach to one of our nation's most respected courts. 
And it is not how we should be making decisions to spend 
millions of dollars on lifetime appointments.
    I have offered a fair solution to this problem. The Court 
Efficiency Act would remove one seat from the D.C. Circuit 
entirely, therefore saving the taxpayers money. It would then 
reallocate two other seats to circuits where they are needed, 
the Second and the Eleventh.
    Importantly, unlike in 2008, this legislation would take 
effect immediately. In practical terms, this means that 
President Obama would still be able to make these appointments. 
He simply makes them to circuits where they are, in fact, 
really needed.
    Mr. Chairman, you titled this hearing, ``Are More Federal 
Judges Always the Answer?'' Based upon the objective criteria 
that I have discussed here today, the answer to that question 
is clearly no.
    For that reason, instead of focusing on confirming judges 
who aren't needed, and in the process wasting millions of 
dollars in taxpayer money, we should be looking for smart ways 
to reallocate our judicial resources.
    So, thank you again, Mr. Chairman, for this opportunity.
    [The prepared statement of Senator Grassley follows:]
Prepared Statement of the Honorable Charles E. Grassley, a U.S. Senator 
  from the State of Iowa, and Ranking Member, Senate Committee on the 
                               Judiciary
    Mr. Chairman, Ranking Member Conyers, and Members of the Committee, 
thank you for the opportunity to be here.
    Our federal judiciary is special. I have tremendous respect for it.
    We need to preserve and protect it. And we need to strengthen it.
    As legislators, we also have an obligation to be good stewards of 
taxpayer dollars.
    The federal government shouldn't expect a good result from simply 
throwing additional money at an issue. This is especially true during 
these trying fiscal times.
    Fortunately, one of the best ways to strengthen the judiciary also 
happens to be the most cost-effective.
    I have been committed to reallocating judicial resources in a more 
efficient way for many years.
    During the 1990s when I was Chairman of the Subcommittee on 
Administrative Oversight and the Courts, I led a multi-year effort to 
study the allocation of court resources. This included an examination 
of court caseloads and the allocation of judgeships.
    There has been some controversy over the years regarding the D.C. 
Circuit. And some of that controversy has centered on the D.C. 
Circuit's caseload.
    My work on the court study ultimately led to a successful effort 
during the Bush Administration to remove a seat from the D.C. Circuit, 
and reallocate it to the 9th Circuit.
    Let me emphasize two important points about that effort.
    First, Republicans worked to remove a seat from the D.C. Circuit 
while a Republican occupied the White House.
    Second, although the D.C. Circuit seat was removed immediately, the 
new seat in California did not take effect until January of 2009.
    In other words, we took away from President Bush the opportunity to 
make that nomination. But we did not give him an opportunity to make an 
additional nomination in the 9th Circuit. Instead, we delayed that 
authority until a new President could make that nomination.
    For additional context, I'd remind people that in 2006, the other 
side argued that we should not fill any more than 10 seats on the D.C. 
Circuit based on the caseload. They successfully blocked Mr. Keisler on 
that basis.
    Since that time, the caseload statistics have declined even 
further. They have fallen so much during the last few years that the 
caseload per active judge today, with 8 active judges, is nearly the 
same as it was back then, with 10 active judges.
    In fact, Chief Judge Garland--a Clinton appointee to the D.C. 
Circuit--recently confirmed that the caseload has continued to fall.
    According to Chief Judge Garland, the number of cases scheduled for 
oral argument per active judge has fallen steadily over the last 10 
years. In 2006 there were 90 cases scheduled for oral argument per 
active judge. By the 2012 to 2013 term that number had declined to 81.
    Moreover, other judges on the court confirm that the caseload 
simply doesn't merit additional judges. As one judge wrote to me:
    ``I do not believe the current caseload of the D.C. Circuit or, for 
that matter, the anticipated caseload in the near future, merits 
additional judgeships at this time. . . . If any more judges were added 
now, there wouldn't be enough work to go around.''
    That is a current judge on the court saying, ``If any more judges 
were added now, there wouldn't be enough work to go around.'' Who is in 
a better position to know the workload than the judges themselves?
    Given that it seems so clear additional judges aren't needed, why 
would the President nominate not one, not two, but three more judges to 
this court?
    Why would the President make such an aggressive push to confirm 
judges that aren't needed? Remember, these judgeships come at a cost of 
roughly $1 million per judge, per year. And these are lifetime 
appointments. That is $1 million per year, for a ifetime appointment.
    Unfortunately, we know the answer. The other side hasn't been shy 
about its reasons.
    Four of the active judges on the court were appointed by Republican 
Presidents, and four were appointed by Democrat Presidents. But, senior 
members of the Senate Majority have said they need to ``switch the 
majority'' on the court.
    Why is that? Why would they be intent on ``switching the 
majority''?
    Well, as one of the President's prominent allies put it, ``the 
president's best hope for advancing his agenda is through executive 
action, and that runs through the D.C. Circuit.''
    And, we have all heard the President pledge that if Congress 
doesn't act, then he will simply go around it through executive order. 
But of course, that strategy works only if the D.C. Circuit rubber 
stamps those executive actions.
    Mr. Chairman, that is a cynical and ideologically driven approach 
to one of our nation's most respected courts. And it is not how we 
should be making decisions to spend millions of dollars on lifetime 
appointments.
    I have offered a fair solution to this problem. The Court 
Efficiency Act would remove one seat from the D.C. Circuit entirely, 
therefore saving the taxpayer money.
    It would then reallocate two other seats to circuits where they are 
needed, the Second and Eleventh.
    Importantly, unlike in 2008, this legislation would take effect 
immediately. In practical terms, this means that President Obama would 
still be able to make these appointments. He simply makes them to 
circuits where they are needed.
    Mr. Chairman, you titled this hearing, ``Are More Federal Judges 
Always the Answer?'' Based on the objective criteria that I've 
discussed here today, the answer to that question is clearly No.
    For that reason, instead of focusing on confirming judges who 
aren't needed--and in the process wasting millions of dollars in 
taxpayer money--we should be looking for smart ways to reallocate our 
judicial resources.
    Thank you again, Mr. Chairman, for the opportunity to be here.
                               __________

    Mr. Goodlatte. Thank you very much, Senator. Depending on 
your schedule, you are welcome to stay or go, because I know 
you have a number of other commitments. But if you can remain 
to take questions, we would love to have you stay.
    Senator Grassley. Thank you.
    Mr. Goodlatte. But we will leave that to your discretion.
    Senator Grassley. I have to go.
    Mr. Goodlatte. Thank you, Senator.
    Senator Grassley. Thank you.
    Mr. Goodlatte. Ambassador Gray, welcome.
    Let me say to the other Members of the Committee, 
Ambassador Gray has testified before this Committee on a number 
of other occasions, and I had the honor of meeting with him 
when I led a congressional delegation to Europe, to Brussels, 
and met with him when he was our ambassador to the European 
Union.
    So, it is good to see you again.

TESTIMONY OF C. BOYDEN GRAY, FORMER WHITE HOUSE COUNSEL, GEORGE 
             W. BUSH, BOYDEN GRAY & ASSOCIATES PLLC

    Ambassador Gray. Thank you very much, Mr. Chairman, for 
this opportunity to address this question of the D.C. Circuit. 
I am not going to talk about the caseload numbers that Senator 
Grassley just referred to. I think Carrie Severino is going to 
look at that more carefully.
    I do want to point out, though, the answer of one of the 
D.C. Circuit judges to a question posed in a questionnaire by 
Senator Grassley. ``If any more judges were added now, there 
wouldn't be enough work to go around.'' I think it is pretty 
clear that the view on our side is that this is an attempt to 
tilt the outcomes of this court, and that is not good for the 
kind of impartiality that the public is entitled to.
    But I wanted to devote a little bit of time and what my 
testimony addresses are the other ways in which adding judges 
when they are not needed in a way that politicizes the process 
undermines the collegiality which is necessary for reasoned 
decision-making and careful thought.
    Now, you may ask me for a definition of collegiality, and 
of course it is working through issues in a common fashion, but 
perhaps it might be contrasted with what happens when you don't 
have it, and that is what the D.C. Circuit was like when I 
first came to Washington. It was, as Felix Frankfurter 
observed, ``a collectivity of fighting cats.'' Judge Harry 
Edwards, who rescued--a Democratic nominee who rescued the D.C. 
Circuit from this collectivity of fighting cats has written 
that it was not uncommon when he first arrived for one of his 
colleagues to say, ``Can I count on your vote?'' It sort of 
evokes what Senator Reid said, that we need one more on the 
D.C. Circuit, one more from his side, as it were.
    I think that this is a bad thing to get back into. Judge 
Edwards changed the rules, worked to improve collegiality. He 
was very successful, and it was followed with great success by 
Judge Ginsberg later, Judge Sentelle now, Judge Merrick 
Garland. It is marked in part by a lack of en banc reviews 
where you have a lot of second-guessing. The D.C. Circuit 
discourages that because they like to think that the panels can 
get it right and the panels don't matter in terms of the make-
up of the political appointment.
    Judge Edwards has written that he witnessed occasions when 
ideology took over and effectively destroyed collegiality 
because the confirmation process promoted ideological 
commitment. This is what I think your Committee is wise to 
point out should not be allowed to reassert itself after so 
many years of settled administrative law-making.
    The Federal Judicial Center has identified nine as about 
the limit of how big a court should be. Beyond that, you have 
fragmentation. You have the law of the panel rather than the 
law of the circuit. It is very hard as a practitioner to 
understand exactly how to shape behavior, how to recommend, how 
to advise on behavior if you have an unpredictable court, and 
too many judges makes for unpredictability and lack of 
coherence.
    I think that Senator Schumer I think hit the nail on the 
head when he said we will fill up this court in one way or 
another, but it is based on the premise that somehow this 
court, the way it has operated, has overruled or reversed or 
blocked the current White House more than previous White 
Houses, and this is just an erroneous assumption.
    The data show quite clearly that President Bush in his 8 
years was overruled at a higher rate than Obama was in his 
first term, President Obama was in his first term, 16.7 
percent. And this reversal rate has been pretty steady over the 
last two or three decades, and I don't think it is worth 
risking the collegiality and the reasoned decision-making that 
we have enjoyed. Witness Judge Tatel's very nice comments about 
Judge Sentelle on his retirement. The only point can be to 
change the end result, and that is not a permissible reason for 
making appointments.
    Thank you.
    [The prepared statement of Ambassador Gray follows:]

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                               __________

    Mr. Coble [presiding]. Thank you, Ambassador Gray.
    Ms. Aron, you are recognized.
    Ms. Aron, your mic needs to be activated.

               TESTIMONY OF NAN ARON, PRESIDENT, 
                      ALLIANCE FOR JUSTICE

    Ms. Aron. Thank you very much for the opportunity to 
address a very important topic: the ability of our Federal 
courts, the envy of the world, to efficiently, effectively, and 
fairly administer justice for the people of the United States.
    The Committee has posed the question, ``Are More New Judges 
Always the Answer?'' I am not sure I can speak to the word 
``always,'' but I can say without hesitation that today, with 
more than 1 of 10 judgeships vacant, with caseloads rising 
rapidly, and with the complexity of litigation increasing, the 
answer to your question is yes, more judges are the answer. In 
fact, we strongly concur with the judgment of the Judicial 
Conference of the United States and the Chief Justice of the 
United States that additional judgeships should be created in 
many parts of the country in order to ensure that the 
Constitution's promise of justice is fulfilled.
    But the need for Congress to create new judgeships aside, 
we believe the first step in resolving the crisis in our courts 
is to fill all the existing district and circuit court seats.
    As of today, there are 91 total vacancies. Astonishingly, 
there are more empty judgeships now than when President Obama 
took office almost 5 years ago. In fact, just among the states 
that are home to Members of this Committee, there are a total 
of 66 open seats. Strikingly, 34 of those seats are considered 
judicial emergencies by the Administrative Office of the U.S. 
Courts, meaning these courts are so overwhelmed they cannot 
function properly.
    This crisis has real-world consequences for real people. 
When your constituents go to court, they face a judicial system 
that is overburdened, overworked, understaffed, and 
underfunded. Cases are delayed interminably. Decisions are 
rushed. Because of burgeoning criminal caseloads, which must 
take priority, civil actions are shoved aside. Small businesses 
can't get resolution to problems that tie their enterprises 
into knots. Contract disputes go unresolved. Individuals 
seeking justice for discrimination, or fraud, or disputes with 
banks or business or the government, are left hanging, often 
for years.
    Every American deserves his or her day in court. In the 
circuit courts of appeals, cases are bigger, the stakes are 
higher, and the consequences for all of us are more 
significant, and that fact is doubly true for the D.C. Circuit 
Court of Appeals.
    There are currently three vacancies out of 11 seats on the 
court that is often described as the second most important 
court in the country. The court shouldn't be forced to do its 
job with 27 percent of its seats empty. It is like telling a 
football team they can only use eight players on Sunday, 
instead of 11. The court can ill-afford to have this critical 
component of our judicial system send less than a full team to 
the game.
    These are the facts. With the unique responsibilities to 
oversee the actions of Federal agencies, the D.C. Circuit 
handles some of the most complex, lengthy, sensitive litigation 
in the Federal courts. Because of this unique caseload, when 
there were only eight seats filled in 2003, Senator Orrin Hatch 
called this a crisis situation.
    But in addition to the special nature of its cases, the 
plain fact is that this court's workload has increased 
significantly in recent years.
    With only eight of 11 seats filled, the caseload is 
currently at 185 cases per active judge. In 2003, when John 
Roberts was confirmed to the Circuit, that left 111 cases per 
active judge. In 2005, the confirmation of Judges Brown and 
Griffith resulted in 119 cases per active judge. Even if all 
three seats were filled tomorrow, the cases per active judge 
would be 134.
    Given the stresses on the D.C. Circuit and the importance 
of its legal mission, we are pleased that President Obama has 
put forward a full slate of outstanding, well-qualified 
nominees. When there are vacancies on the Federal court, the 
president is required to nominate new judges, subject, of 
course, to the advice and consent of the Senate. Article II, 
Section 2 of the Constitution is crystal clear on this matter. 
The President cannot ignore his constitutional obligations, and 
neither should the Senate.
    Mr. Chairman, new judges, whether those named to fill 
existing vacancies or those chosen to serve in entirely new 
seats, are indeed the answer if the question we ask is: Will 
justice be done in the United States of America?
    Thank you very much.
    [The prepared statement of Ms. Aron follows:]

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                               __________

    Mr. Coble. Thank you, Ms. Aron.
    Ms. Severino, you are recognized.

    TESTIMONY OF CARRIE SEVERINO, CHIEF COUNSEL AND POLICY 
               DIRECTOR, JUDICIAL CRISIS NETWORK

    Ms. Severino. Thank you. I want to thank Chairman 
Goodlatte, Ranking Member Conyers, and the distinguished 
Members of the Committee for the opportunity to speak here 
today.
    This June, the President took the unusual step of staging a 
Rose Garden announcement highlighting his simultaneous 
nomination of three individuals to the Court of Appeals for the 
D.C. Circuit. The President portrayed the D.C. Circuit as a 
court in crisis. He suggested that the D.C. Circuit was short-
staffed, threatening our ability to maintain a fair and 
functioning judiciary.
    But the numbers tell a different story, and it is a story 
that is broadly recognized by those familiar with the D.C. 
Circuit. They show it to be the most underworked court in the 
country, with a caseload that has dropped significantly over 
the past decade.
    There are many ways to measure a court's workload, but they 
all tell the same story in this case. The most relevant 
statistic, and the one that forms part of the Administrative 
Office of the Courts' own formula to gauge workload for 
determining judicial emergencies, is the number of annual 
filings per judge. With its current complement of eight active 
judges, equally balanced between Republican and Democratic 
nominees, the D.C. Circuit has the lowest number of new filings 
per judge of any circuit court. This is three to four times 
fewer than the busiest courts.
    The number of cases disposed of per judge is another metric 
by which to gauge workload. Once more, the D.C. Circuit is the 
court with the lowest numbers, and the highest numbers are 
three to four times as many.
    One can also look at the number of cases disposed of on the 
merits. This is an even better gauge of the type of cases that 
take up the most time for judges. And once again, the D.C. 
Circuit is dead last. Circuits, including the Eleventh Circuit, 
have up to five times as many cases as the D.C. Circuit.
    Ms. Aron has pointed to the numbers of pending cases on the 
Circuit. I am happy to talk more about the reason that is not a 
relevant statistic later, but it broadly just points to the 
amount of time it takes a case to work through the court, not 
the amount of time the court itself is spending on it but just 
the overall length of time.
    Every circuit court has a unique balance of types of cases, 
and the D.C. Circuit is no exception. Its role in hearing many 
administrative challenges means it does get more than its fair 
share of complicated regulatory issues, but that hardly makes 
up for the heavily skewed absolute numbers of cases. The 
average administrative law case may take longer to work through 
than the average criminal case, but not three to five times as 
long.
    The statistics cited previously all presume that only the 
eight active judges are carrying the court's caseload, but that 
is far from accurate. According to the Chief Judge of the D.C. 
Circuit, the six senior judges who hear oral arguments together 
carry a workload equivalent to 3.25 active judges. Adding that 
to the eight active judges, those are the full-time equivalent 
of 11.25 judges serving on the D.C. Circuit currently. That is 
more than the number of authorized seats on that court.
    The judges responding to Senator Grassley indicated that 
those senior judges were fairly young and healthy on the 
average and could be expected to serve for another decade.
    On an anecdotal level, this all confirms my experience on 
the D.C. Circuit, which was that we are much less busy than my 
friends clerking at other circuits at the time.
    The President was correct about one thing in his Rose 
Garden speech: there are courts that are truly short-staffed 
and in crisis. The Administrative Office of the Courts, taking 
into account the number and types of cases each circuit hears, 
has identified eight appellate seats that constitute judicial 
emergencies. But the D.C. Circuit is nowhere on that list.
    The question, then, is: Why did the president choose to 
make such high-profile nominations to a court that barely has 
enough work to go around at a time when almost 70 percent of 
Federal vacancies, including 75 percent of the judicial 
emergencies, had no nominee? There is no neutral principle that 
explains his move, suggesting that the timing and manner of the 
three D.C. Circuit nominations was simply due to politics.
    The D.C. Circuit enjoys a unique role as the court that 
hears the lion's share of cases addressing administrative law 
and regulatory agencies. Its position as a check on government 
power puts it in the crosshairs of a president whose governing 
style is characterized by aggressive use of administrative 
agencies and an avowed desire to push the envelope to achieve 
his goals when he has been stymied by Congress. Key Democratic 
Senators have acknowledged this motivation behind the D.C. 
Circuit nominations. We heard references to Senator Schumer's 
comments about filling the D.C. Circuit up one way or another. 
Senator Harry Reid has also pointed to political reasons to 
move forward on the president's nominations to the D.C. 
Circuit, complaining that the court was wreaking havoc in the 
country. He said, ``We are focusing very intently on the D.C. 
Circuit. We need at least one more. There's three vacancies, we 
need at least one more and that will switch the majority.''
    Our nation is struggling to get its financial house in 
order, and our judiciary is laboring in many places with a 
shortage of judges. This is not the time to increase the 
burdens on taxpayers for a court that doesn't need new judges 
or to divert scarce resources from where they are needed most. 
The D.C. Circuit has been regularly canceling hearings. We need 
judges where there are real judicial emergencies.
    Congress should instead act to shield the American people 
from the unnecessary financial burden of funding additional 
judges simply to facilitate the President's aggressive policy 
agenda. Thank you.
    [The prepared statement of Ms. Severino follows:]

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                               __________

    Mr. Goodlatte [presiding]. Thank you, Ms. Severino.
    We will now begin the questioning under the 5-minute rule, 
and I will begin by recognizing myself.
    Ms. Severino, in her testimony, Ms. Aron argued that the 
court needs more judges because it has more pending cases than 
it did a decade ago. I note that in his response to Senator 
Grassley, Chief Judge Merrick also included a stat that shows 
the number of pending cases.
    Can you briefly explain the distinction between appeals 
filed per active judge, appeals pending, and appeals 
terminated, as well as offer your understanding of which 
caseload measures the Administrative Office relies upon as most 
accurately reflecting the workload of individual judges?
    Ms. Severino. Certainly. Appeals filed is obviously the 
number of appeals coming in per active judge, the number of 
appeals being filed each year, and that is the circuit actually 
that the Administrative Office of the Courts uses as its 
baseline for determining whether a judicial emergency exists. 
So they clearly view that as the most relevant statistic.
    The number of cases disposed also is a measure of how many 
cases are being decided. So you can see, are the judges being 
forced to work through more cases than another circuit.
    Pending cases is, I think, doesn't make a lot of sense here 
unless you are trying to find the one statistic in which the 
D.C. Circuit isn't dead last compared to the other circuits. 
Not that its numbers are even unusually high in terms of 
pending cases. It is eighth out of the twelve circuits 
considered. But it doesn't say anything meaningful at all about 
the court's caseload. Pending cases are simply those that 
haven't yet been terminated by the court and are making their 
way through the process. So we would expect a fair amount of 
cases simply because not every case is going to be decided 
within 1 year, and a court could have a large number because of 
true backlog reasons. If the court was short-staffed and 
couldn't schedule hearings, we might see that pending cases 
would say something about backlog.
    But, in fact, in this case, the D.C. Circuit is actually 
canceling hearings regularly. I will say it again: they are 
actually canceling hearings for lack of cases to be heard in 
oral argument. Thus, this number is clearly not pointing to the 
fact that the court is overburdened in getting to these cases. 
There are a lot of other reasons that I think explain the 
pending cases number better in this case, including the fact 
that it may just take a long time for parties to get their 
motions going back and forth. Cases can disappear for a long 
period of time because of dispute resolution. Cases can also 
just be failure to prosecute and the court never finds out, and 
after a certain number of years they just take them off the 
docket.
    So I think in this case, it is clear that the pending cases 
statistic is not very meaningful and doesn't illustrate a lot 
about what is going on in the D.C. Circuit.
    Mr. Goodlatte. Thank you, and I will direct this question 
to you as well. Ms. Aron made much of former Chief Judge Wald's 
representation of the complex, time-consuming, labyrinthine 
disputes over regulations that she said characterized the 
court's docket. You acknowledged that the court has ``more than 
its fair share of complicated regulatory issues,'' but 
concluded ``that hardly makes up for the heavily skewed 
absolute number of cases.''
    Can you elaborate on the evidence that your opinion is 
based on?
    Ms. Severino. Having worked there, I certainly see that 
these cases do take a longer period of time. Administrative 
appeals run a broad range of types of issues. They can include 
simple things like Board of Immigration appeals, up to complex 
regulatory matters.
    But the simple fact is that while it may take a longer 
period of time than criminal cases, which are not as prevalent 
in the D.C. Circuit, they don't take three times or five times 
as long.
    In addition, the case numbers used by the Administrative 
Office of the Courts to determine judicial emergencies do take 
into account the type of cases that are used. They are weighted 
numbers. And again, the D.C. Circuit is nowhere on that list, 
and I think that illustrates the judgment of the Administrative 
Office in terms of what numbers are relevant in terms of 
caseload.
    Mr. Goodlatte. Ms. Aron, do you think the standards laid 
out in the Senate Democrats' letter of 2006 regarding the 
appointment of additional judges to the D.C. Circuit were fair 
then? And regardless of whether you agreed with them at that 
time, how is it fair for the public to expect these same 
standards to not apply when the Democrats control the Senate 
and the White House?
    Ms. Aron. Well, first of all, I think we have to start with 
what the Constitution actually says about judgeships, and it is 
important to note that President Obama is simply carrying out 
his constitutional task, an obligation of filling judgeships. 
That is set out in the Constitution. He is only carrying out 
his constitutional duty, and the Senate ought to confirm them 
as soon as possible.
    With the situation----
    Mr. Goodlatte. So you don't agree with the Senate 
Democrats' letter of 2006.
    Ms. Aron. Well, I should say that with respect to the 
nomination of Peter Keisler, it was an incredibly controversial 
nomination. For one thing, Peter Keisler had worked in the 
White House, and the White House----
    Mr. Goodlatte. Right, but they weren't making their 
argument based upon his qualifications or his potential 
position on any judicial decisions he might have to make. They 
were making their decision solely based upon the lack of need 
to fill the judgeship based upon the workload of the court.
    Ms. Aron. Right. Well, that was a situation where we 
already had the ninth, tenth, and eleventh seats filled, and 
then John Roberts was nominated to the Supreme Court. It was 
only after several months that Peter Keisler's name came up, 
and interestingly and for the record, it is important to point 
out that the Republicans failed to move Peter Keisler's 
nomination forward. They never held a Committee vote on his 
nomination, and therefore never reported him out.
    So, in essence, Republicans----
    Mr. Goodlatte. Maybe there was merit to that Senate 
Democrat standard that caused them to determine--and, in fact, 
as Senator Grassley noted, it was in the same timeframe that 
one seat was removed from the D.C. Circuit.
    Ms. Aron. I think it is important to note now that Judges 
Silverman, Doug Ginsberg, the Chief Justice, John Roberts, 
Judge Timothy Tymkovich of the 10th Circuit, are all unanimous 
in saying that given and because the workload of the D.C. 
Circuit is so large, so important, so complicated, all of these 
seats need to be filled. No one, no one questioned that except 
senators----
    Mr. Goodlatte. Well, let me interrupt because my time has 
expired. But that would be even though the court has a smaller 
caseload today and more judges to handle the cases when you 
count both the active judges and the six senior judges, who are 
carrying a considerable workload on the court.
    Ms. Aron. Well, I would just say to that point that 
President George W. Bush filled the ninth, tenth, and eleventh 
seats on the court when the caseload per active judge was lower 
than it is today. I would also point out that Senator Grassley 
and his colleagues recently confirmed a judge to the Eighth 
Circuit Court of Appeals, the Tenth Circuit Court of Appeals, 
with caseloads lower than the D.C. Circuit.
    So, in effect, filling----
    Mr. Goodlatte. Let me ask you one more question here. In 
May, the New York Times quoted you as saying that the D.C. 
Circuit had ``frustrated the President's agenda.'' It sounds as 
if you are suggesting that it is proper for judges to decide 
cases based on subjective factors such as political ideology or 
affinity to the person who nominated them rather than the rule 
of law, and can you possibly justify that view?
    Ms. Aron. Well, those were my views and still continue to 
be. But the fact remains that presidents have an obligation to 
fill existing vacancies regardless of what my views are on the 
matter.
    Mr. Goodlatte. Even if it wastes taxpayers' money?
    Ms. Aron. I don't view access to the courts as wasteful of 
taxpayers' money. In fact, I would view it as a priority.
    Mr. Goodlatte. Well, access to the courts certainly would 
be a priority, but if the court has been historically able to 
function with fewer judges, it is not up to the Congress, 
including the United States Senate with its advise and consent 
power, to needlessly fill positions on the court when those 
positions are not necessary to handle the caseload that has 
been handled in the past and is not superior to that right now.
    My time has expired, and the Chair will recognize the 
gentleman from Georgia for 5 minutes for his questions.
    Mr. Johnson. Thank you, Mr. Chairman.
    I would first ask that a letter from Thomas Sussman, 
Director of Governmental Affairs for the American Bar 
Association, dated October the 29, 2013, addressed to yourself, 
I would ask that it be entered into the record.
    Mr. Goodlatte. Without objection, so ordered.
    [The information referred to follows:]

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                               __________

    Mr. Johnson. Thank you.
    Mr. Goodlatte. And while we are doing that, I will also 
seek unanimous consent to put in the record Senator Arlen 
Specter, at the time chairman of the Senate--I'm sorry. It is a 
letter signed by Senators Patrick Leahy, Chuck Schumer, to 
Senator Arlen Specter, at that time Chairman of the Senate 
Judiciary Committee, dated July 27, 2006, setting forth the so-
called Senate Democrats' letter standards.
    Without objection, it will be made a part of the record.
    [The information referred to follows:]

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                               __________

    Mr. Goodlatte. The gentleman is recognized.
    Mr. Johnson. Thank you, Mr. Chairman.
    I want to point out before I begin that the entire budget 
of the Federal judiciary makes up less than 1 percent of our 
entire Federal budget. It is not driving budget deficits and 
debt, and we know that this is not, this failure to adequately 
staff our judiciary is not about saving taxpayer dollars. It is 
really about forming a judiciary that has certain ideological 
views, and it is my friends on the other side of the aisle that 
seem to have that aspiration and have been working on that for 
some time.
    There is a serious need to fill judicial vacancies on the 
Federal bench throughout this country. District court vacancy 
rates are at historically high and unsustainable levels. The 
number of vacancies that qualify as judicial emergencies due to 
their high volume of case filings, the length of the vacancy 
or, if it is a court with only one judgeship, is without 
precedent. According to one of our witnesses today, according 
to the Alliance for Justice, over 10 percent of all judges--
excuse me--over 10 percent of all judgeships in Federal trial 
and appellate courts are unfilled.
    The Brennan Center for Justice at New York University 
School of Law likewise reports that these have been recently 
higher than at any point since 2002. These vacancies are 
hurting districts with the greatest need because district court 
workloads are at record highs. But due in large part to the 
Republican obstructionism, nominees to the Federal bench face 
record wait times from nomination to current confirmation in 
the Senate as compared to other recent Administrations.
    Senate Republicans have blocked a historic number of 
district court nominees during this particular presidency. In 
my own state of Georgia, the Northern District, there are three 
district court vacancies and two Eleventh Circuit Court 
vacancies, both Georgia positions. Because we have two 
Republican senators in Georgia, I think it is no surprise that 
we have had these vacancies that have been unfilled for years 
now. A couple of those district court appointments are judicial 
emergencies, and still, instead of giving deference to the 
President to nominate candidates of his choosing, we have 
bargaining going on by our senators trying to install their 
picks in exchange for allowing the President to get one pick 
confirmed.
    So it is almost like it is a game. And who is suffering? It 
is the American people who have business before the court.
    Justice delayed is justice denied, and it is really 
incredible to me to think that we would look at our third co-
equal branch of government as a step-child and keep it from 
doing what is fundamental in our Constitution, in our preamble 
to the Constitution, to establish justice. I mean, that is the 
first thing that is mentioned, and we are treating our 
judiciary as if it were a step-child and something that we can 
just lord over. It is wrong.
    Is there any other explanation for the failure to confirm 
judges for the Federal bench throughout the nation other than 
what I have stated today? Does anyone want to answer that 
question? Is there any other reason?
    Ms. Severino. Congressman, I think there is that clear 
additional reason, one that is identified by Russ Wheeler of 
the Brookings Institution, no conservative apologist, and that 
is the President's failure to move quickly to make nominations 
to these seats. He identified that----
    Mr. Johnson. All right. Well, let me stop you right there. 
Ms. Aron, you apparently have some----
    Ms. Aron. I would differ from the other witness. In fact, 
90 percent of the vacancies today are due to the fact that 
Republican senators, either two senators in some states or one 
senator in other states, are blocking the progress of 
candidates. The delay is due almost entirely to Republican 
senators, and I am pleased to say that the President has 
actually picked up the rate of nominations and now has out-
paced President Bush, and I think President Clinton in terms of 
number of nominations.
    So it is not the number of nominations. It is the fact that 
they cannot get through the states, and once they are on the 
floor, they are blocked by Republican senators.
    Mr. Johnson. Thank you. I yield back.
    Mr. Franks [presiding]. The Chair now recognizes Mr. Coble 
for 5 minutes.
    Mr. Coble. Thank you, Mr. Chairman. I appreciate that.
    I want to revisit the New York Times quote. Ms. Aron, it 
sounds to me as if you were suggesting that it is proper for 
judges to decide cases based upon subjective factors such as 
political ideology or affinity to the person who nominated them 
rather than the rule of law. I find that irregular.
    Ms. Severino, can you illuminate in this irregular darkness 
in which I sit, responding to Ms. Aron's response?
    Ms. Severino. I'm sorry. Could you repeat the question?
    Mr. Coble. I said it appeared to me from the New York Times 
quote that Ms. Aron was more concerned about ideology and 
loyalty to the person doing the nominating than the rule of 
law. This comes down irregular to me. Now, what am I missing?
    Ms. Severino. Unfortunately, I have to agree with you. I 
think her quote saying that we need to restore balance to the 
court by filling empty seats and pointing to the fact that the 
majority has made decisions frustrating the President's agenda 
I think clarifies the reason that these seats are being filled 
right now. All the discussion of judicial emergencies is 
obviously not what is going on in the D.C. Circuit here. I 
absolutely agree that judicial emergencies should be filled. 
But given the fact that there is no such emergency in the D.C. 
Circuit and that Ms. Aron has pointed to the President's agenda 
as a reason to fill the seats, I think it is clear that that is 
what is going on, not a real concern for filling the seats in 
that circuit. Let's fill the judicial emergencies first.
    Mr. Coble. Well, the circuit has the lowest workload in the 
nation. Am I correct?
    Ms. Severino. That is correct, whether you look at appeals 
filed, appeals disposed of, appeals disposed of on the merits, 
virtually any statistic.
    Mr. Coble. Mr. Chairman, and I say to the witnesses, and 
the panel, this seems to me to be an ideal case of where 
prudence should prevail. Savings could be realized and no one 
would be penalized. Am I missing the mark? Hopefully not. I 
miss the mark from time to time.
    Ms. Severino. Even if it is a small percentage of the 
Federal budget, it seems like a good use of taxpayer money to 
be prudent and not over-spend where we don't need it.
    Mr. Coble. As Senator Grassley indicated, if we got more 
judges, there wouldn't be enough work for them to go around. He 
explained that one of the sitting judges stated that.
    Ambassador--by the way, it is good to have North Carolina 
exposure here, you and Ms. Severino. You didn't make the cut on 
that, Ms. Aron, or did you? Did you have Carolina connections?
    Ms. Aron. No.
    Mr. Coble. We will forgive you.
    Ms. Aron. A New Yorker.
    Mr. Coble. We will hold you harmless for that.
    Ms. Aron. Through and through.
    Mr. Coble. We will hold you harmless for that.
    I was going to ask the Ambassador one question, Mr. 
Chairman, if I can find it.
    Ambassador, I noticed that you relied heavily on quotes 
from now-Senior Judge Harry Edwards. What makes his perspective 
so persuasive to you?
    Ambassador Gray. For two reasons. First, he did, as I 
indicated in my testimony, rescue the D.C. Circuit from really 
a fractious period, and launched it on what has been a two- or 
three-decade-long period of stability and predictability, and 
this is something which every judge finds to be an incredibly 
important component of his or her work there, to provide 
predictability for the regulated community in this country. 
That is why I quote him so extensively, because he has thought 
about it and seen it and overseen the shift from, as 
Frankfurter called it, ``the collectivity of fighting cats'' to 
one of, if not the most, collegial court in the country. It 
also happens to be that he was a Democratic nominee, so this is 
not a partisan pitch on my behalf.
    Mr. Coble. Well, I thank you both, all three of you, for 
being here.
    Ms. Aron, I didn't give you a chance to respond to the New 
York Times. I assume that you were correctly quoted.
    Ms. Aron. I was correctly quoted, and I stand by the quote. 
But I think that certainly the D.C. Circuit has, in a number of 
instances, gone out of its way to invalidate many of the 
President's critically important initiatives, and that is a 
result of Republican court-packing of the D.C. Circuit.
    But put that aside because we are not talking about court 
packing and ideology at this hearing. As I understand it, this 
is a hearing on filling vacancies on the court, and ideology--
there is nothing in the Constitution regarding ideology and 
filling vacancies. Put simply, this President has an 
obligation, an obligation that has been honored and revered 
over time by every other president, and he is simply carrying 
out his constitutional duty to fill existing vacancies.
    In fact, if you look at the three candidates who have been 
put forth for the D.C. Circuit, you will find three supremely 
qualified candidates. I would never expect that any of them 
would upset the current collegial climate on the court. In 
fact, all three are well known. One is currently a district 
court judge who was unanimously confirmed to the district court 
just a few years ago. So I hardly think----
    Mr. Coble. My time has run out, so if you will wrap up.
    Ms. Aron. Okay. I think I am done.
    Mr. Coble. I assume that you don't agree with my irregular 
stand from your response, and we can respectfully disagree on 
that. The people to whom you referred--and I will be through in 
just a minute, Mr. Chairman--may well be qualified, but they 
are not needed. The tasks are being performed without their 
presence there.
    So with that, I will yield back, Mr. Chairman.
    Mr. Franks. I thank the gentleman.
    The Chair will now recognize himself for 5 minutes for 
questions.
    Ambassador Gray, if it is all right, I will begin with you. 
It appears some of our friends on the left have concluded that 
the court is irretrievably biased against their perspective and 
that the only remedy, even though the court seems to be evenly 
split, as it appears, but their only remedy is to stack the 
deck against those who challenge the expansion of the 
administrative state.
    What evidence do you have that they have misdiagnosed the 
problem and are overreaching in their attempts to reverse 
outcomes with which they disagree?
    Ambassador Gray. I don't see any evidence of bias in favor 
or against the current Administration. What the data show very 
clearly are that the reversal rates work the other way. That is 
to say the current Administration has been reversed less than 
the predecessor Administration of George Bush, and I would take 
just a minute, if I may, to use as an example one of the cases 
that Senator Schumer complained about when he said we are going 
to fill up the D.C. Circuit one way or the other.
    He was talking about--this is a technical case. Some of you 
may be familiar with it, the cross-state pollution rule which 
the D.C. Circuit rejected. Now, the interesting thing about 
that is that is the follow-on case to an earlier rule, the same 
rule basically, that the D.C. Circuit threw out after it had 
been issued by President Bush.
    So the origin of this case that Senator Schumer is 
complaining about is an anti-Bush case, not an anti-Obama case. 
I can't really think of an example that more disproves Senator 
Schumer's case better than that one instance.
    Mr. Franks. Thank you, sir.
    Ms. Aron, I would like to follow up with Ambassador Gray's 
comments. He cited Federal court statistics that show that the 
court reversed administrative agencies in only 16.7 percent of 
the cases it decided during the 2009-2012 reporting period, and 
that compares with 18.8 percent of the time during the Bush 
years. It sounds as if the numbers don't back up the assertions 
that the judges on the court, including the ``Republican-
appointed majority,'' are biased against the Administration.
    Besides anecdotes, what is your evidence to the contrary?
    Ms. Aron. Well, I think what we ought to consider and what 
has been considered by the Judicial Conference of the United 
States, led by Chief Justice John Roberts, is pending cases per 
active judge, not filings, not completions. It is interesting. 
In 2012, the D.C. Circuit was only operating with seven out of 
twelve judges. How could you look at completions when the 
number of judges was down?
    I would say anybody that has looked at this issue, 
Republican and Democrat alike, has concluded that pending cases 
per active judge is the standard. And again, as I have said, 
President George W. Bush, when he filled the ninth, tenth, and 
eleventh seats, the active caseload per judge was lower than it 
is today. This is not an issue of caseloads.
    Mr. Franks. Let me--sorry about that. Let me go ahead and 
speak to that and ask you about this. Ms. Severino noted that 
the court has had to cancel sittings in recent years due to the 
lack of cases scheduled for oral argument. Indeed, in 1985, the 
court adopted a case management plan that required judges to 
sit in 4-day sessions and hear oral arguments in 112 cases per 
year.
    For years now they have sat in 3-day sessions only and had 
been scheduled to hear oral arguments in 72 cases a year.
    So how does that square with these facts--these facts, how 
do they square with the claims on your part that the court's 
workload has significantly increased in recent years? And also, 
how do you reconcile this reduction in workload with your 
support for 138 percent increase in active judges?
    Ms. Aron. Well, I cannot base my answer on anecdotal 
information.
    Mr. Franks. Well, these are not anecdotal. This is not 
anecdotal information at all, Ms. Aron.
    Ms. Aron. I can only base it on active pending caseload.
    Mr. Franks. These are the statistics. This is not 
anecdotal. I am asking you, other than anecdotal information, 
what information do you have, what evidence do you have that 
the court has somehow become more activist against this 
president than the previous president? What evidence do you 
have that their workload has increased that would require 138 
percent increase in judges?
    Ms. Aron. Okay. So, those are two separate questions.
    Mr. Franks. They are.
    Ms. Aron. All right.
    Mr. Franks. You have made assertions in both areas. If you 
would just give me evidence in either one of them, I would be 
happy.
    Ms. Aron. Okay. Well, let's deal with the ideological part 
first.
    Mr. Franks. All right.
    Ms. Aron. And then we can deal--I think I just responded--
with the caseload.
    If you look at the results in cases coming out of the D.C. 
Circuit, whether it is environmental protections, the D.C. 
Circuit struck down an EPA rule that was intended to control 
air pollution across state lines. That rule, had it gone into 
effect, would have prevented from 13,000 to 24,000 premature 
deaths.
    Worker rights. This court of appeals invalidated three of 
President Obama's nominees to the National Labor Relations Act.
    This court invalidated an FDA cigarette warning label a few 
years ago.
    This court struck down a regulation that was promulgated 
pursuant to Dodd-Frank that would have made it easier for 
shareholders to propose their own nominees to corporate boards 
of directors.
    Mr. Franks. Thank you, Ms. Aron.
    Ms. Aron. But again, as I have said, as I have said, my 
views and what this court has done has relatively little 
relevance to the issue about which we are here today, which is 
filling existing vacancies, and our position is that it is 
critically important. In fact, it is the constitutional task 
for the President and the Senate to confirm judges to the D.C. 
Circuit.
    Mr. Franks. Thank you, Ms. Aron.
    And I will now recognize Mr. Bachus for 5 minutes.
    Mr. Bachus. Thank you.
    I think in 2006--and I don't know if you have a copy, Ms. 
Aron, of a letter that Senator Joe Biden and Patrick Leahy and 
Chuck Schumer and Ted Kennedy and four other Democratic, or 
five other Democratic senators sent to then-chairman of the 
Judiciary Committee, Arlen Specter. They urged them to tend to 
actual judicial emergencies before moving forward with nominees 
to the D.C. Circuit.
    Do you think they were right to do that?
    Ms. Aron. Well, I am reading this letter, and I would say 
that the----
    Mr. Bachus. Look at the next-to-the-last paragraph, ``we 
should turn to nominees first and emergency vacancies should 
clearly take priority over a possibly superficial one, and that 
is the need to fill an eleventh seat on the D.C. Circuit.''
    Ms. Aron. I am looking at the paragraph before that, and I 
have----
    Mr. Bachus. But tell me about that one, and then we will go 
to the one before that.
    Ms. Aron. Well, I certainly can see the reason that 
Senators Schumer, Leahy and others wanted to----
    Mr. Bachus. Joe Biden, Vice President Joe Biden.
    Ms. Aron [continuing]. Wanted to maintain some process.
    Mr. Bachus. No, I am not talking about that paragraph.
    Ms. Aron. It looks to me like what was happening at that 
point, in 2006, is that----
    Mr. Bachus. Well, they said their caseload wasn't 
sufficient. But look at that next-to-the-last paragraph. Would 
you do that? I don't know if you can read that, but they said 
that emergency vacancies should clearly take priority over what 
they described as superficial----
    Ms. Aron. Sir, I think that last paragraph has to be read 
in context, not alone. And it looks to me----
    Mr. Bachus. They were asking him not to appoint someone to 
the D.C. Circuit because----
    Ms. Aron. No. What they were doing in this letter, as I 
read this letter, is they were saying do not rush this 
nomination through before--and there is a very important point 
made in this letter--before the American Bar Association has an 
opportunity to evaluate this nominee. They shouldn't rush this 
nominee through.
    Mr. Bachus. But they also said emergency--they clearly said 
emergency appointments should be made first.
    Ms. Aron. Well, I see that. But I am just saying there is a 
larger context here. The information wasn't in on Mr. Keisler. 
No one could really vote, and we wouldn't want to vote on 
nominees to the Circuit Court before we know what their records 
are. That is what this letter is saying.
    Mr. Bachus. No, it is not. The next-to-the-last paragraph 
says they ought to give priority to the emergency vacancies. 
That is exactly--I am going to read it. ``Emergency vacancies 
should clearly take priority, and we have 34 of those.'' That 
is what it says.
    Let me ask you this. When school children come up here, we 
talk to them about the Constitution. We show them the three 
branches of government. We talk about checks and balances. Do 
you think that a consideration for who sits on a circuit court 
or an appeals court ought to be whether they rule in favor of 
the executive branch? Do you think that ought to be even part 
of the equation?
    Ms. Aron. No. I think we should select nominees based on 
qualifications of intellect, analytical skills, judicial 
temperament, honesty.
    Mr. Bachus. But you said in the New York Times, you talked 
about they keep ruling against the Administration, you need to 
appoint someone that will----
    Ms. Aron. Well, it is my belief that we must--and I think 
the Administration has done an exemplary job of selecting----
    Mr. Bachus. Listen, I realize that you totally support this 
Administration. I mean, for the record, I totally acknowledge 
that.
    What about Mr. Gray's testimony and the numbers? Is there 
anything wrong with these numbers, that this court turned down 
almost 19 percent, 18.8 percent of the Bush--reversed the Bush 
Administration administrative agency rules, and only 16.7 
percent during the Obama Administration? So this court has not 
been more adverse, or is there something wrong with those 
numbers?
    Ms. Aron. I don't believe there is something wrong with 
those numbers. I just don't think those are the relevant 
numbers to consider at this hearing, and they certainly aren't 
the numbers that have been considered by the Judicial 
Conference.
    Mr. Bachus. What about the fact that the court has gone 
from 4 days a week to 3 days a week in their sessions, and they 
have had to cancel hearings? Were you aware of that?
    Ms. Aron. I do not actually believe, one, that that is 
accurate; and two, I think----
    Mr. Bachus. Ms. Severino, it was your testimony that they 
had gone from 4-day sessions and heard oral arguments on 112 
cases, and for years now they have had 3-day sessions only and 
been scheduled to hear oral arguments in 72 cases a year. Is 
that correct? She said she didn't believe it.
    Ms. Severino. As far as I am aware, that is correct. I 
believe that was something Mr. Franks was quoting from a 
different source. It was from the Administrative Office or the 
Clerk of the Court.
    Mr. Franks. We also have statistics here that show that in 
2006, the average per-judge cases was 90. That is when the 
letter was written. And today it is 81. So there is a marked 
decrease rather than an increase.
    Mr. Bachus. But, I mean, she said that she didn't think 
those figures were accurate. Was your testimony inaccurate?
    Ms. Severino. I think the statistics are quite clear on all 
of these issues. It is just a matter of whether you want to 
pick and choose them to find the one statistic that shows--for 
example, she has picked the pending cases and said at the time 
of these earlier nominations the court was less busy than it is 
now. But actually, if you look at any other statistic you will 
see that despite the decrease in number of active judges, from 
10 judges to 8 judges, now we have almost equivalent striking 
the way the court creates law has remained the same, and in 
some cases gone down. It depends on what statistic you look at, 
cases filed per active judge, cases disposed of per active 
judge, cases disposed of on the merits, cases disposed of after 
oral argument, cases scheduled for oral argument per judge. All 
of these show either the cases have remained almost identical 
or have actually gone down in several of these.
    So you can point to this one, pending cases, but I think 
there are a lot of good reasons that the other issues make more 
sense. Those are the statistics I would rely on.
    Mr. Bachus. Ms. Aron, in the New York Times you made the 
point pretty vocally that this court has frustrated the 
President's agenda. But if they believe that those rulings 
violate the law, isn't their job to be a check on the executive 
branch?
    Ms. Aron. Absolutely, absolutely.
    Mr. Bachus. Thank you.
    Mr. Franks. I thank the gentleman.
    And I would now recognize Mr. Holding for 5 minutes.
    Mr. Holding. Thank you, Mr. Chairman.
    Ms. Severino, I have read with interest the Virginia Law 
Review article regarding the D.C. Circuit written by John 
Roberts, and several advocates for packing more judges into the 
D.C. Circuit have cited this lecture or article written by the 
Chief Justice in their support of their effort.
    What do you think is a fair reading of the article, and 
what is the main take-away from it?
    Ms. Severino. I think it is actually ironic that they cite 
this article because, if anything, the main take-away point 
is--it is really a historical piece, first of all. It is not 
talking about the caseload of the courts. But his main take-
away point is the unique role of the D.C. Circuit in reviewing 
decisions of the national government, and he actually points to 
the reason that that makes it particularly vulnerable.
    He relates a story from the 19th century, from President 
Lincoln actually, who eliminated the court entirely because he 
wasn't happy with its rulings. And while we are not hearing 
calls today to have the court completely eliminated, we are 
hearing a very similar type of argument pointing, as Ms. Aron 
did, to the results of the cases, not actually to the legal 
standing. Maybe someone who is a fan of a particular EPA 
regulation would like to see it upheld, but that is not the 
court's question that they are considering.
    They need to consider is this regulation within the 
authority of the statute. Similarly with the NLRB appointments. 
It is not would we like more commissioners on the NLRB, are we 
pro or against workers' rights. That wasn't any issue in the 
case. The case was how is the recess appointments power to be 
interpreted.
    These are the issues that the judges should be looking at. 
They shouldn't be--Republican or Democrat nominees should not 
be looking at whether it is a policy result they should want. 
They should be looking simply to keep the court within its 
constitutional and legal boundaries. That is their unique role, 
as the Chief Justice pointed out in this article, and it does 
make them vulnerable to political attacks, but I am hoping that 
the D.C. Circuit will be able to maintain its role because we 
certainly need that check to maintain our checks and balances.
    Mr. Holding. Well, it is a fascinating article.
    I want to turn away from the D.C. Circuit for a moment. My 
frame of reference is the Eastern District of North Carolina, 
where I used to practice, which has been ranked as the number-
one most efficient district court in the nation. It dispenses 
with more cases in a more efficient manner than any other 
court, and I think it far out-ranks number two.
    One of the ways that the chief judge in the Eastern 
District has been able to clear backlogs and keep up with a 
robust docket is having visiting judges come in from around the 
nation, either senior judges or judges from other districts 
that have a very light caseload.
    I wonder if there has ever been a study done that looked 
across all districts and saw where there was excess judicial 
capacity in other districts and said that, well, we can apply 
that excess judicial capacity to districts that are over-worked 
or have higher caseloads, if there has ever been a concerted 
effort to do that, to any of you all's knowledge.
    Ambassador Gray?
    Ambassador Gray. I am not aware of any study that has been 
comprehensive about this, but the practice of inviting in 
judges to alleviate shortages is not unheard of. I mean, it 
does happen, and senior judges do move around where they are 
most needed, including Supreme Court retirees.
    Ms. Aron. I would just say I think the Judicial Conference 
takes into account numbers of judges and pending cases being 
argued. I just want to mention, though, that the Eastern 
District of North Carolina has the longest standing district 
court vacancy in the country.
    Mr. Holding. And I would point out that being the most 
efficient district in the country may indicate that they have 
enough judges.
    But, Ms. Severino, you were going to add a comment.
    Ms. Severino. Certainly. The Administrative Office of the 
Courts actually does keep statistics on this, and it actually 
lines up in some ways with the workloads of the circuits. You 
will see the Eleventh Circuit has--I don't have the numbers 
right in front of me, but it has a very large number of 
visiting judges that come in. That is clearly the busiest 
circuit right now by almost any statistic that you look at, 
sometimes five times more busy than the D.C. Circuit.
    The D.C. Circuit, however, at least in the past year, and I 
am not aware of any time in recent history that it has had any 
visiting judges, simply again because there is not the need for 
it at all. There is barely enough work to go around, as the 
judges have mentioned. So that is another good indicator of the 
need for judges on a court.
    Mr. Holding. Thank you.
    Mr. Chairman, I yield back.
    Mr. Gowdy [presiding]. I thank the gentleman, the former 
United States Attorney from North Carolina.
    The Chair would now recognize a former United States 
Attorney, Mr. Marino.
    Mr. Marino. Thank you, Chairman, and I apologize. I had 
some people that were waiting in the hall, and I didn't want 
them standing out there that long. I am sure they have other 
important things to do.
    Ms. Aron, I have some questions, and I hear you making your 
argument based on the Constitution. Am I correct in that? You 
are looking at this from a constitutional point of view.
    Ms. Aron. The Constitution, and I would say standard 
operating procedures. This is what every president does, is 
fill vacancies.
    Mr. Marino. Okay, but there has still been a lot of 
standard operating procedures here in D.C. that have taken 
place over the last 50 years in both parties that have put us 
$17 trillion in debt. I clerked for a Federal judge, I was a 
prosecutor for 18 years, and I worked in a factory until I was 
30 years old, and I know what it is like to stretch a paycheck 
from week to week and how my wife stretches a buck still today, 
particularly with kids in college and the whole nine yards.
    Let's set the constitutional argument aside for a moment. I 
think the President has a responsibility, every president. And, 
by the way, every president for the last, I think it is the 
last 40, maybe even 50 years, they have contributed to the 
debt. Every single president has added to the debt. It is just 
getting in bigger numbers over the last 50 years. So enough 
blame to go around.
    But I think the President has a responsibility to the 
taxpayers as well. He or in the future she is the CEO and has 
to watch the bottom line.
    Now, there was a statement made, and I do agree with this 
because I read it somewhere before, that judges annually cost 
about $1 million with salaries, benefits, their staff, the 
whole nine yards. So did I miss or did you not bring up in your 
opening statement when you were talking about so many cases per 
judge? I didn't hear you bringing up senior judges. So correct 
me if I am wrong. You based that division of cases on what we 
refer to as sitting or full-time judges, correct?
    Ms. Aron. Correct.
    Mr. Marino. Okay. Now, where I came from, the Middle 
District of Pennsylvania, we have six sitting judges or ``full-
time'' judges, but we also have seven senior judges that are 
still costing the taxpayers $1 million a year, okay? So I think 
it was--I think you should have not left out that those senior 
judges, at least what I am familiar with in the Middle District 
of Pennsylvania, are carrying near or full caseloads. And I 
know, because I have tried cases as a U.S. Attorney myself in 
front of not only the sitting judges but the senior judges.
    So there is some misconception there. I think it is skewed, 
and if you are going to divide the cases, you need to divide 
them with the sitting full-time judges and the retired judges.
    Just so the public knows, first of all, the circuit courts 
don't hear trials. They hear appellate cases. They hear when 
someone doesn't like the decision, whether it is the plaintiff 
or it is the defendant, or whether it is the government, they 
hear legal arguments as to whether a person should get a new 
trial or a new sentencing. So that is very different from 
hearing trials, hearing cases, going to trial, taking guilty 
pleas, sentencing, the whole nine yards. District courts are 
very busy.
    So if there is anywhere, if there is anywhere that we 
should be looking to increase Federal judges, it should be in 
the district court area because of the numbers of cases. When I 
was a U.S. Attorney, and I still communicate with my 
colleagues, the same number of judges are there, six sitting 
full-time and seven seniors. When one of those seniors dies, 
that increases the caseload. Thank goodness, at least in the 
Middle District of Pennsylvania, we have seven great senior 
judges that are there.
    So that is a misconception, and I am disappointed that you 
didn't factor that in.
    Ms. Aron. May I respond?
    Mr. Marino. Please.
    Ms. Aron. Okay. First of all, we are looking at active 
Federal judges. You know from your time as a clerk and U.S. 
Attorney that a senior judge can leave the bench at any time he 
or she wants. They don't serve----
    Mr. Marino. Okay. Let me----
    Ms. Aron. They are not there for life.
    Mr. Marino. Let me stop you right there, though. But they 
don't. They don't.
    Ms. Aron. But they can.
    Mr. Marino. But they are still there. They are still there 
collecting full pay and full benefits.
    Ms. Aron. But they can opt out of the very complex 
regulatory cases if they----
    Mr. Marino. They can. Okay. Why don't we wait until that 
point? Why don't we wait until that point when they opt out and 
say I don't want to do this any longer, and then assess the 
situation?
    Ms. Aron. Okay, here is the answer why.
    Mr. Marino. Okay.
    Ms. Aron. Because just like the Administration, the 
Judicial Conference has to plan, has to take into account what 
the caseload will likely be in the future, and in taking into 
account caseloads and in planning ahead, it is very difficult, 
almost impossible, to know what a senior judge is going to do 
or not do.
    Mr. Gowdy. The gentleman's time has expired. I am going to 
let the gentleman get an answer to his final question. I would 
just note for Judge Poe and Mr. Collins, votes are probably 
going to be called in the next 15 or 20 minutes.
    Mr. Marino. You brought up just a moment ago what if you 
can't make any statements based on what may happen. Well, the 
caseloads have actually gone down with the same number of 
judges, and I think the figures that you were citing are very 
misleading.
    And with that, I yield back.
    Mr. Gowdy. I thank the gentleman.
    The Chair would now recognize a former state court judge 
from Texas, Judge Poe.
    Mr. Poe. I thank the Chairman.
    Thank you all for being here.
    Ms. Aron, if I understand your testimony, the bottom line 
is they need more judges on the D.C. Circuit. Is that right?
    Ms. Aron. My testimony is that the President has an 
obligation to fill existing vacancies, and certainly it is in 
the interest of the public that our courts be fully staffed.
    Mr. Poe. So is that a yes?
    Ms. Aron. Did you say you were in Texas? We have eight 
vacancies now on the district courts in Texas.
    Mr. Poe. Just answer my question. Do you believe that the 
issue is they need more judges on the D.C. Circuit?
    Ms. Aron. Yes.
    Mr. Poe. That is either a yes or it is a no.
    Ms. Aron. Yes, I think that court ought to be fully 
staffed.
    Mr. Poe. All right. Don't you think a fairer thing to do, 
to any Administration, be it Republican or Democrat or 
whatever, that if they need more judges on a circuit court, 
that the law take effect at the next term of whoever president 
it is, to set aside any political philosophy? If it is really 
the need for judges, not need for progressive judges, 
conservative judges, if it is the need for judges, would not 
the fairer thing to do to be that the law would take effect for 
new judges at the next term of whoever is president? Yes or no?
    Ms. Aron. But that is not what the Constitution says or 
requires in Article 2, Section 2.
    Mr. Poe. That is not my question.
    Ms. Aron. So the answer is no.
    Mr. Poe. That is not my question.
    Ms. Aron. The answer is no.
    Mr. Poe. So it is no. Don't you believe, or do you believe 
that judicial appointments in Federal court are political?
    Ms. Aron. Some are, some aren't. Sure. I mean, let's look 
at--I won't go there.
    Mr. Poe. But you have your choice, you have your choice.
    Ms. Aron. Of course some are, some aren't. But that is not 
the point here. The point----
    Mr. Poe. Well, it is the point here. You want a political 
appointment to serve a certain philosophy of the current 
president. That has been the history of other presidents as 
well.
    Ms. Aron. I would----
    Mr. Poe. Excuse me.
    Ms. Aron. I am sorry. Excuse me.
    Mr. Poe. It would be fairer that if you need more judges on 
a particular court, that the next term would allow that, not 
the current term of the sitting president, to avoid the 
appearance of political partisanship. That is my point.
    Ms. Aron. So my response would be I think you would be 
surprised.
    Mr. Poe. I would be surprised.
    Ms. Aron. If you looked at the judges that have been 
appointed by President Obama, 86 percent of those judges come 
from corporate backgrounds, come up from state courts, or come 
from U.S. Attorney offices. In fact, the vast majority of his 
appointments have been exemplary, have been individuals that 
enjoy respect from both sides of the political aisle.
    Mr. Poe. But that is not the issue we are talking about. We 
are talking about more judges on the D.C. Court. We are not 
talking about political appointments by the President of the 
United States in general. We are talking about the D.C. Court 
and stacking a particular court to meet a certain philosophy. 
That is really the issue that we are talking about today.
    Federal judges, in my opinion, are political appointments, 
political appointments. In other states, or in states, like 
Texas, we have political elections to determine who judges are. 
It works for us. We are accountable, of course, to the public. 
We are elected, but it is still political. Political 
appointments, to get appointed through the political process to 
be a Federal judge, it is political. I have talked to a lot of 
Federal judges. It is very political. That is just the system 
that we operate under.
    As far as needing more judges, I have no sympathy for the 
workload of the D.C. Circuit Court. I was a trial judge. My 
opinion is nobody should serve on an appellate bench unless 
they have been a trial judge, or at least a trial lawyer. That 
is a different issue.
    But I was a trial judge, and we tried a lot of cases. 
Appellate courts seem to be the same in my opinion. They want 
more help, but do they really need it? Maybe not. They have the 
luxury of hearing a case and then spending time--weeks, 
months--to make the decision. Trial court judges don't have 
that luxury. We hear a case, sometimes capital murder cases 
that I heard, you have to rule right then. You have to make a 
decision, and then those cases are reviewed.
    So I don't buy the argument that we need more Federal 
judges on the D.C. Circuit no matter who the president is.
    With that, I yield back, Mr. Chairman.
    Mr. Gowdy. I thank Judge Poe.
    The Chair would now recognize the gentleman from Georgia, 
Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman.
    Well, let's just finish up here with the bang that we 
started with. I am glad that you are here. I am glad the 
witnesses are here. It is really interesting to see because in 
just a moment we are going to get to what I call in North 
Georgia, and maybe around the world, we are going to call a 
duck a duck. Okay? We have been dancing it the whole time. So 
we are going to talk about this.
    What is amazing right now for me is that there seems to be 
a theme this week, and I am going to tie it together. There 
seems to be a theme that has developed today and this week 
really with an Administration and a president who seems to not 
know what he does and what he doesn't know. I mean, we don't 
seem to have anyone from the Administration here to shed light 
on the approach to the courts, and that is probably okay 
because just like they don't know if they were spying on our 
allies or building a website that worked, or probably wouldn't 
know if they were stacking the courts or not, or at least put 
out a press release to say, you know, we are not sure about 
that, I didn't know about it.
    You know, it is a long way fall for a Democrat president 
who is highly respected who said the buck stops here, to now 
knowing, well, I don't know anything, I didn't know about that. 
So let's not worry about what we don't know, because that seems 
to be the theme from the Administration. Let's do what we do 
know.
    We know that there are currently eight judges on the D.C. 
Circuit evenly split between Republicans and Democrats, and 
that is a problem. We know that there are three vacancies. We 
know that the D.C. Circuit Court averaged 41 fewer signed 
decisions compared to the national average. We know that the 
D.C. Circuit caseload is the lowest in the nation, less than 
half the national average. We know that the President and 
Members of the Senate and, frankly, you, Ms. Aron, have a 
vested interest, or at least an interest in ensuring that the 
court has a central role in litigation affecting national U.S. 
policy and laws, is filled with persons ascribing to his 
political views.
    The reason I know that today is because I sat here and 
listened. I have listened to you, and also read from your 
article in which you attributed to and said yes, that you agree 
that you stand by your quote that balance must be restored on 
that court, the empty seats must be filled.
    You have stated today that you don't like some of the 
decisions, and it was in a question-and-answer session where 
you said we have got to bring back balance because of the 
decisions that have overturned this Administration that come 
from a Republican court-packing scheme. And this was your own 
words from today.
    In looking at this right here, you also made an interesting 
question. I want to deal with two things. It is not necessarily 
the political philosophy which I believe we have, and let's 
call the duck a duck. There is a political philosophy here that 
is being played out. But we also have the allocation of 
resources.
    Ms. Aron, you have been eloquent in your position, and I 
respect that--we just have a difference of view here--in saying 
that it is the constitutional responsibility of the President 
to fill these vacancies. Well, there are eight emergency slots, 
and five have not been filled. So would you be on record right 
now in saying that the President is negligent in his 
responsibilities?
    Ms. Aron. No, not at all.
    Mr. Collins. Why not? You said he has a responsibility, 
that he has an overwhelming responsibility. You have said it on 
multiple occasions. So if he has a responsibility to the 
Constitution, and he has not even named nominees to eight very 
emergency slots, but yet he has named three to a political 
slot, wouldn't that be negligence, or asleep at the wheel?
    Ms. Aron. First of all, I don't think you can distinguish 
political slots from other judicial slots. But I would say----
    Mr. Collins. Well, stop right there. I apologize. I 
apologize, because you just said something very interesting, 
distinguishing political slots from non-political slots. In the 
conversation with the gentleman from Texas, you just basically 
said, well, some are and some are not.
    Let's describe that. Are judges political appointments or 
not?
    Ms. Aron. They are, but let's take your state of Georgia, 
for instance.
    Mr. Collins. Okay.
    Ms. Aron. You have had a number of vacancies in the state 
for years, and----
    Mr. Collins. Then let's focus on Georgia and not the D.C. 
Circuit where you just don't like the opinions.
    Ms. Aron. We should be focusing on all of them, but the 
topic for today's hearing is the D.C. Circuit.
    Mr. Collins. So I go back to that, reallocation of assets. 
If you don't like the result, you want to get your political 
opinion here. That is the part that--I guess we danced around 
it long enough. I am bringing it out. You may or may not like 
it, and that is fine. But it is a political issue. You stated 
it on several occasions. But this is not about filling a 
caseload that needs filling.
    I can agree with you in Georgia. I can agree with you in 
other places. My friend from North Carolina points out the most 
efficient court, and they are doing it with a unique 
perspective. But let's at least get to the point here where I 
believe that with the other things going on in our country, 
with the other things with our court system--and I am an 
attorney as well, and access to justice is an issue--then let's 
at least be honest with it.
    Instead of saying, well, it may or may not be, the 
President appointed these folks because he didn't like what was 
coming out. It doesn't need to be pushed forward at this point. 
This is not the court to deal with. Let's deal with the five he 
has not appointed, because I do believe it is either asleep at 
the wheel or negligent. Which is it?
    Ms. Aron. Well, it is neither, sir.
    Mr. Collins. How can it not be?
    Ms. Aron. It is neither. I think you have to look at the 
critical importance the D.C. Circuit holds in our judiciary. It 
is the crown jewel of the system. It hears the most complex 
cases. It has judges and has always had judges who have 
superior analytical skills. It is the court that provides the 
farm team for the Supreme Court. Four justices on the Supreme 
Court came from the D.C. Circuit.
    And I would say to you, talking about politics, that the 
reason that Senator Grassley and some of his colleagues do not 
want to fill those seats is solely not due to caseload, because 
even John Roberts and Timothy Tymkovich disagree with him, and 
those aren't guys you want on the other side. You want them on 
your side. They don't want them on the D.C. Circuit because 
they understand the critical importance the D.C. Circuit has on 
all of our lives.
    Mr. Collins. And you just made my case. The President wants 
the crown jewel.
    Mr. Gowdy. The gentleman's time has expired.
    Ms. Aron. No, he wants to fill vacancies, as every other 
president has.
    Mr. Gowdy. The gentleman's time has expired.
    The Chair would now recognize himself as the last 
questioner.
    I was heartened to hear my friend from Georgia, not Mr. 
Collins but Mr. Johnson, long for the old days where politics 
and agenda didn't involve themselves with D.C. Court of Appeals 
appointments. It made me wish that Mr. Johnson had been around 
when Miguel Estrada was nominated for the D.C. Court of 
Appeals, because I think the analysis was a little different 
then, and it certainly is a little different in South Carolina.
    I know that Bill Nettles is not a Federal judge. He is the 
United States Attorney, so that would be a political 
appointment, with the word ``political'' modifying the 
appointer and not the appointee. Bill Nettles is an Obama 
appointee, and he is politically to the left of Chairman Mao. 
He has done a phenomenal job in South Carolina. I would not 
hesitate to appear before a Senate panel and recommend that he 
be re-upped for another 4 years.
    Bill Traxler is the chief judge of the Fourth Circuit Court 
of Appeals. Do you know what president put him on the Federal 
bench?
    Ms. Aron. President Bush.
    Mr. Gowdy. Do you know who elevated him to the Fourth 
Circuit?
    Ms. Aron. President Clinton.
    Mr. Gowdy. How about Henry Floyd? Who put him on the 
Federal bench? Another excellent, fair trial judge that I tried 
many cases in front of. He was put on the district court by 
President Bush and was elevated to the Fourth Circuit Court of 
Appeals by President Obama because I spoke at his investiture.
    Ms. Aron. I know. Democratic presidents often do that.
    Mr. Gowdy. So I am wondering why politics has to infect and 
invade every single judicial conversation that we have.
    Ms. Aron, I have to ask you because you said it, you said 
that the majority on the D.C. Court of Appeals is thwarting the 
President's agenda. Who? Which ones? Name them. Who? When you 
said that, what judges, by name, were you referring to?
    Ms. Aron. I would like to talk about perhaps----
    Mr. Gowdy. That is great, and when you are a Member of 
Congress, you can ask the questions. But for now, I get to ask 
the questions. I want to know who specifically you were making 
reference to when you said the majority is trying to thwart the 
President's agenda. Which judges on the D.C. Court of Appeals 
do you think are motivated by thwarting this president's 
political agenda?
    Ms. Aron. I am not sure it is necessary to get into this 
topic, but if you want to----
    Mr. Gowdy. It is necessary to me.
    Ms. Aron [continuing]. Then I will be happy to tell you.
    Mr. Gowdy. It is necessary to me, Ms. Aron, because you 
said three or four judges. You say we need more judges because 
the ones that are there now are insufficiently advancing the 
President's agenda. I want to know which ones.
    Ms. Aron. Okay.
    Mr. Gowdy. Who?
    Ms. Aron. I will give you two examples.
    Mr. Gowdy. Give me names.
    Ms. Aron. Okay, I am happy to do that.
    Mr. Gowdy. Give them.
    Ms. Aron. Brett Kavanaugh.
    Mr. Gowdy. Okay.
    Ms. Aron. Why was Brett Kavanaugh selected for the D.C. 
Circuit? One, he authored the Starr Report. Two, he was a 
Whitewater prosecutor.
    Mr. Gowdy. Does that mean he is not qualified?
    Ms. Aron. No.
    Mr. Gowdy. Does that mean he can't do a good job?
    Ms. Aron. No.
    Mr. Gowdy. John Roberts was the deciding vote in Sebelius 
v. NFIB.
    Ms. Aron. No.
    Mr. Gowdy. I bet that surprised you.
    Ms. Aron. But I would say that Brett Kavanaugh was 
selected--look, qualified lawyers in Washington, D.C. are a 
dime a dozen in our biggest law firms. We know. Let's talk--
let's stop the gamesmanship. Brett Kavanaugh was selected 
because President George W. Bush knew, if confirmed, he would 
pretty much carry out President Bush's agenda, and he has.
    Let's talk about----
    Mr. Gowdy. Let me ask you this, Ms. Aron. No, no, no, no, 
no. I am not going to let you do that. Who appointed Brennan to 
the Supreme Court?
    Ms. Aron. I think Eisenhower.
    Mr. Gowdy. Do you think he was surprised at the way that 
turned out? Who appointed Souter to the Supreme Court?
    Ms. Aron. I remember that, George Bush, Sr.
    Mr. Gowdy. Do you think he was surprised at the way that 
turned out?
    Ms. Aron. He probably was.
    Mr. Gowdy. Who put John Paul Stevens on the U.S. Supreme 
Court?
    Ms. Aron. I think that was Richard Nixon.
    Mr. Gowdy. Do you think he was surprised at the way that 
turned out?
    Ms. Aron. Listen----
    Mr. Gowdy. So you can't go based on who the president is, 
what their judicial philosophy is going to be. That is why we 
give them lifetime tenure.
    Ms. Severino, let me ask you this. It has been a long time 
since I read the advance sheets. How many different courts of 
appeals have dealt with the recess appointment issue?
    Ms. Severino. The major case was the D.C. Circuit case, the 
NLRB case.
    Mr. Gowdy. Right. But there have been two other courts of 
appeals, including the Fourth Circuit, that have also gone into 
the issue of whether or not we are going to take Harry Reid's 
definition of recess appointments when there is a Republican 
president, or whether we are going to take Harry Reid's 
definition of recess appointments when there is a Democrat 
president. All three circuits ruled the exact same way.
    Ms. Severino. Right, and that points to the fact that 
ideally judges, regardless of the nominating party, the 
nominating president, ought to be neutral. I think just going 
to the example of Brett Kavanaugh, one example is where he was 
the lone judge to say that he was upholding Obamacare in the 
recent Commerce Clause challenges, and I think he probably got 
some flak from people in his party for that, but I think it was 
a principled decision if he did it based not on his policy 
interests but on his judicial judgment.
    Mr. Gowdy. And he wound up being wrong on the Commerce 
Clause, but he should have done it under the tax and spend 
clause.
    Ms. Severino. At least he did it for the right reasons, I 
think, his judgment rather than his policy preferences.
    Mr. Gowdy. I had lots and lots of judges rule differently 
from how I wanted them to rule. I never once questioned the 
political motivations of a judge that I appeared in front of. 
That is why you give them lifetime tenure.
    They have sounded the bell, Mr. U.S. Attorney, for us to go 
vote. I do want to thank all three of our witnesses for your 
loaning us your expertise and your collegiality with one 
another and with the Members of this Committee.
    I am informed that the record will remain open for 5 
legislative days.
    And with that, thank you again, and we are adjourned.
    [Whereupon, at 4:31 p.m., the Committee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
  Congress from the State of Virginia, and Chairman, Committee on the 
                               Judiciary
    The Committee will come to order. I'll recognize myself and then 
the Ranking Member for opening statements.
    On June 4, in a highly unusual move, the President nominated three 
individuals to a single circuit court--the United States Court of 
Appeals for the District of Columbia.
    These three nominations, together with the recent Senate 
confirmation of a fourth selected by the President, are intended to 
pack the D.C. Circuit to its absolute capacity of 11 authorized 
judgeships.
    Given that:

        1)  each judgeship is estimated by the Congressional Budget 
        Office (CBO) to cost taxpayers $1 million each and every year;

        2)  there are eight vacancies designated as ``emergencies'' on 
        our nation's circuit courts and the President has not submitted 
        a nomination for five of these positions;

        3)  the Senate Judiciary Committee has not conducted a hearing 
        on any of the three Circuit ``emergency'' vacancies the 
        President did submit a nominee for;

        4)  the D.C. Circuit has never in its history had a single 
        emergency vacancy;

        5)  the court's workload has steadily and precipitously 
        declined over many years; and

        6)  the court has a generous complement of six active 
        ``senior'' judges who together contribute substantially to the 
        work of the court;

it is appropriate for the public and this Committee to ask whether 
filling these judgeships is the highest and best use of limited 
taxpayer dollars and to also consider alternative explanations as to 
why the President and his allies have decided at this moment to pursue 
such an aggressive and virtually unprecedented strategy with respect to 
these particular judicial vacancies.
    When the President announced these three nominations, he justified 
his action by noting that these vacancies existed on the D.C. Circuit 
and asserting . . . ``If we want to ensure a fair and functioning 
judiciary, our courts cannot be short-staffed.''
    So our first inquiry is to ask what is the evidence the D.C. 
Circuit is ``short-staffed'' and further, that the court is not ``fair 
and functioning'' and therefore needs to be dramatically enlarged.
    At the outset, I want to note I consider it an affront to the 
judges of the D.C. Circuit to imply the court has operated in an 
``unfair'' manner. While it is understandable that litigants, including 
the Administration, who fail to prove their case, will be disappointed 
in particular outcomes, there is no cause to suggest, by implication or 
otherwise, that the court has conducted itself in anything other than 
an honorable fashion.
    Indeed, as we will soon hear, the D.C. Circuit has a well-earned 
reputation as a ``national court'' that is ``the second most important 
. . . in the country'' in terms of its prestige and impact upon a wide 
array of significant public interests.
    We'll soon hear from our distinguished panel of witnesses but 
before recognizing them, I want to offer several observations.
    The starting point for answering our initial question is to look at 
data from the Administrative Office of the U.S. Courts (AO).
    According to the AO's most current publicly available data (through 
June 30, 2013), the D.C. Circuit's ``caseload profile'' shows it to be 
the lowest in four out of five measured categories of appeals in 
``actions per panel'' among the 12 regional circuits in the country.
    In terms of absolute numbers, the court has the lowest number of 
``total appeals'' annually among all Circuits with only 1,193 appeals 
filed through September 30, 2012. That number is actually down more 
than 13% from 2005 when it was 1,379.
    Measured by the number of cases ``per active judge'', the D.C. 
Circuit dropped from 99 cases on average in the 2003-2004 term to only 
81 in the most recent year.
    Rather than focus on ``pending'' cases, a statistic that includes 
decisions routinely ratified by Circuit Court judges after initial 
review and recommendations by clerks (including 34(j) cases), a better 
proxy for the workload of an individual judge is the number of ``signed 
written decisions per active judge.''
    Through June 30, 2013, the national average was 58. As of September 
30, 2012, the average for the judges on the D.C. Circuit is 17. This is 
less than one-third the national average. If anyone suggests this is an 
aberration then consider the greatest number for the court in the last 
six years was only 21.
    In 1985, the court adopted a case management plan that required 
judges to sit eight times a year for four days and to participate in 
oral argument in 112 cases annually. The sittings have been steadily 
reduced to three-day sessions and the number of oral arguments has 
shrunk dramatically--to only 72.
    Our witnesses will offer further detail but it is clear that by any 
reasonably objective criteria, the D.C. Circuit has the lowest caseload 
of any of the 12 regional circuits. And we haven't even begun to 
consider the contributions of the six active senior judges who the 
Chief Judge, Merrick Garland who was nominated by President Clinton, 
identified as the equivalent of 3.25 full time active judges. So, in 
effect, the court already operates with 11.25 judges.
    Nor have we begun to consider that we have finite resources as a 
nation and that there are other Circuits with a demonstrably greater 
need for additional judges.
    So if there isn't actually a problem with the court being ``short-
staffed'' and it isn't unfair or not doing its work, what is driving 
the President and his allies to go to such lengths? The evidence 
suggests they object to not batting a thousand in litigation and think 
the court is, in fact, functioning too well.
    But before looking at that, let's consider what standard the 
current leaders of the Senate Judiciary Committee considered 
appropriate for the D.C. Circuit just a few short years ago. That was 
when President Bush nominated Peter Keisler to the court. The ``Keisler 
standard'' was publicly proposed and enthusiastically endorsed by eight 
Democratic Senators in a July 27, 2006 letter to the then-Chairman of 
the Judiciary Committee, the late Senator Specter.
    At the outset, the letter states, ``Mr. Keisler should under no 
circumstances be considered--much less confirmed--by [the Senate 
Judiciary] Committee before we first address the very need for that 
judgeship . . . and deal with the genuine judicial emergencies 
identified by the Judicial Conference.''
    The authors went on to assert that ``by every relevant benchmark, 
the caseload for that circuit has only dropped'' and insisted that 
``before we rush to consider Mr. Keisler's nomination, we should look 
closely . . . at whether there is even a need for this seat to be 
filled and at what expense to the taxpayer.''
    What criteria did they propose to measure caseload? Their letter 
nowhere mentions ``pending'' cases, which are suspect because they 
generally don't involve much ``judge-time''. Instead, they said the 
standard is: 1) ``written decisions per active judge''; 2) number of 
appeals resolved on the merits per active judge''; and 3) ``total 
number of appeals filed.'' Since 2005, these numbers are down in two 
out of three categories.
    The letter concluded:

        ``we believe that Mr. Keisler should not jump ahead of those 
        who have been nominated for vacant seats identified as judicial 
        emergencies by the non-partisan Judicial Conference. . . . We 
        should turn to [judicial emergency] vacancies first; emergency 
        vacancies should clearly take priority over a possibly 
        superfluous one.

        Given the singular importance of the D.C. Circuit, we should 
        not proceed hastily and without full information. Only after we 
        reassess the need to fill this seat, perform reasonable due 
        diligence on the nominee, and tend to actual judicial 
        emergencies, should we hold a hearing on Mr. Keisler's 
        nomination.''

    In closing, the letter emphasized it reflected ``the unanimous 
request of Democratic Senators.'' So the Keisler standard is, in fact, 
the standard of all ``Democratic Senators''--at least when there is a 
Republican in the White House.
    So this isn't the ``Bob Goodlatte standard.'' And it isn't the 
``Republican Senator'' standard. It is, by its own terms, the 
``Democratic Senator standard.'' When applied honestly and 
consistently, it admits of only one conclusion--we shouldn't be packing 
judges on to a court where they are not needed especially when there 
are higher judicial priorities.
    So now we know where they stand. Or do we?
    It appears the 2013 Senate Democrats are having an identity crisis. 
They are at odds not with Republicans but with earlier iterations of 
themselves. Consider one senior Democrat's complaints about the D.C. 
Circuit ruling that the President cannot make recess appointments 
unless the Senate is . . . actually in recess. With all due respect to 
our colleague, that hardly seems like a decision that should provoke 
fulminations. Indeed, it's a decision that not only respects the 
Constitution but also the historic role of the Senate as the ``world's 
greatest deliberative body.'' Nevertheless, he told an audience in 
March that ``Our strategy will be to nominate four more people for each 
of those vacancies.'' And ``we will fill up the DC Circuit one way or 
another.'' That certainly doesn't sound like his concern has anything 
to do with the court's caseload.
    A few months later, some groups united behind the call to pack the 
court, complaining the court is ``evenly split between Republican and 
Democratic presidents' appointees'' and disclaiming that a majority of 
the court's ``senior judges--who still can and do decide cases--were 
appointed by Republican presidents.'' That doesn't sound like they're 
concerned about the ability of the court to function.
    ``[T]he president's best hope for advancing his agenda is through 
executive action, and that runs through the D.C. Circuit,'' offered one 
advocate. Shortly thereafter, the president responded with his three 
simultaneous nominations, implying as previously noted that his 
decision was out of concern for the D.C. Circuit judges' ability to 
properly complete their work.
    But sadly, this isn't the first time the president and his allies 
have packed circuit courts of appeals with judges at a time when a 
court's workload is, in fact, decreasing. Reminiscent of the D.C. 
Circuit, the Fourth Circuit Court of Appeals in Richmond has actually 
``canceled'' argument dates for two successive months ``because the 
court is current with its caseload and did not have cases needing 
argument on Friday in October or December.''
    As recently as December 2007, there were only 10 ``active'' judges 
on the Fourth Circuit. Today that court, for the first time in its 
history, is at its full authorization of 15 judges. Of those 15, six 
(40%) were nominated by the president and confirmed by the same 
Democratic Senators who wrote of their earnest concern for taxpayers in 
July 2006.
    In terms of caseload, the Fourth Circuit's total appeals filed 
(through June 30, 2013) are down from 5,460 in 2006 to only 5,064 
today. How many judges were needed to handle the increased caseload 
back when there was a Republican in the White House and Republicans 
controlled the Senate in 2006? Only 12. Looked at another way, there 
has been a 25% increase in judges on the Fourth Circuit in seven years 
at a time when the caseload actually declined 7%.
    But for the President and Senate Democrats, judicial authorizations 
are a floor not a ceiling. For them, this isn't about ensuring scarce 
taxpayer dollars are spent wisely and that courts have the resources 
they need where they are most urgently required. This is about 
advancing a political agenda and ensuring our federal courts, which 
were intended by our founders to decide cases and controversies based 
solely upon the Constitution and the rule of law, instead are made 
instruments of their political will.
    That much was made clear when the Senate Majority Leader emphasized 
in August that he was determined to shift the ideological balance of 
the nation's second-highest court. ``We're focusing very intently on 
the D.C. Circuit.'' ``We need at least one more. There's three 
vacancies. And that will switch the majority. So we're working on it.''
    Some might say what of it? The President was re-elected. The 
Democrats maintain control in the Senate. To the victor go the spoils. 
But our system of justice is far too important to become a political 
pawn. As President Truman stated at the ceremony when the cornerstone 
of the very building that houses the D.C. Circuit was first laid:

        ``To our forefathers, the courts were the distinctive symbol of 
        the kind of government--the kind of society--which they were 
        creating in the wilderness of this continent. This new Nation 
        was to be a democracy-based on the concept of the rule of 
        law.''

    Before taking the oath of office as the 17th Chief Justice of the 
United States, Chief Justice John Roberts served two years as a Judge 
on the D.C. Circuit. In 2005, he delivered a lecture at the University 
of Virginia entitled, ``What Makes the D.C. Circuit Different: A 
Historical View.''
    In his remarks, he concluded the D.C. Circuit is ``a court with 
special responsibility to review legal challenges to the conduct of the 
national government.'' That conclusion is one that has been embraced 
and frequently asserted in recent months by close allies of the 
administration's court-packing scheme.
    But an important part of Roberts' remarks they have either not 
noted or conveniently failed to point out is the portion that deals 
with the consequences of a court challenging the conduct of a powerful 
executive. They have also not highlighted the irony that their plan to 
pack the court is intended to ensure the court is made more pliant and 
deferential to their vision of expansive executive authority.
    In describing what happened when the court challenged President 
Lincoln's decision to suspend the writ of habeas corpus in the District 
of Columbia and subsequent congressional action to abolish the court 
and to appoint four new judges more to the Presidents' liking, Judge 
Roberts recounted:

        This Civil War episode is significant in two respects. First, I 
        believe it is a unique episode in American legal history, in 
        which reaction to a particular decision resulted in the 
        abolition of the court and the termination of the judgeships. 
        Second, it shows what has been a characteristic of the District 
        of Columbia Circuit from the beginning--that to the extent the 
        court asserts unique authority in the area of reviewing 
        decisions of the national government, it is also uniquely 
        vulnerable.

    Today, more than at any other time in the past century and a half, 
I believe the evidence shows the D.C. Circuit is ``uniquely 
vulnerable'' to the political branches of government. Specifically, it 
is being targeted by and is susceptible to the unrestrained ambitions 
of the party currently in charge of the White House and the Senate.
    Contrary to the implication, its vulnerability is not based upon 
any evidence the court isn't ``fair and functioning'' but it derives 
from a perspective that the court has performed its ``special 
responsibility to review legal challenges to the conduct of the 
national government'' and the conduct of this president's 
administration all too effectively.
    The Senate Majority Leader offered recently that the D.C. Circuit, 
``is, some say, more important than the Supreme Court.''
    The public would be wise to take note of the determination of the 
Senate Majority Leader and the Democratic members of the Senate to 
change the rules and the rulings of the court. The ongoing campaign to 
pressure and reshape the D.C. Circuit is designed to subordinate the 
rule of law and to elevate political and ideological considerations in 
rendering constitutional and legal judgments. As such, it is an effort 
all Americans should be concerned about.
    If Republican Senators have any doubt what they ought to do in this 
situation then they should recall and faithfully apply the standard so 
forcefully and clearly articulated by the ``unanimous request of 
Democratic Senators'' in 2006.
    They should also take note of the characterization offered by the 
current Chairman of the Senate Judiciary Committee in 2002:
    ``When a President is intent on packing the courts and stacking the 
deck on outcomes, consideration of balance and how ideological and 
activist nominees will affect a court are valid considerations.''
    A President intent on packing the court and stacking the deck on 
outcomes is exactly what we have here. But the campaign to politicize 
our courts and to specifically target the ``second-highest court in the 
land'' risks not merely wasting scarce public funds but squandering 
something much more precious--public confidence in the independence of 
the judiciary.
    This campaign has nothing to do with ``fair and functioning'' 
courts. It has everything to do with ideology and power politics.

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