House committee debates judicial vacancies

Vacancies in the federal judiciary, including 37 emergencies, remain throughout the country as Congress continues to debate filling seats on the U.S. Court of Appeals for the District of Columbia Circuit.

Witnesses had different answers Tuesday during a House Judiciary Committee hearing on “Are More Judges Always the Answer.”

Most said no, but committee members who spoke were split along party lines with Republicans opposed to filling seats on the D.C. Circuit. Although the question did not specify the D.C. Circuit, the respondents did. Three of the circuit’s 11 seats are vacant, but there are six additional judges at senior status.

Throughout the nation, as of Thursday, there were 92 vacancies on the federal bench; 17 on the U.S. Court of Appeals and 75 in the U.S. District Courts, according to the U.S. Courts (www.uscourts.gov).

None of the emergencies are on the D.C. Circuit. One of the District Court emergencies, however, is a Rochester vacancy on the U.S. District Court for the Western District of New York, created Dec. 15 when Judge Charles J. Siragusa was elevated to senior status. Rochester attorney Elizabeth A. Wolford has been nominated to fill that vacancy. Her nomination, approved by the Senate Committee on the Judiciary on Aug. 1, is awaiting a vote on the Senate floor where one of President Barack Obama’s D.C. Circuit nominees, Patricia Millett, was blocked Thursday by Republicans.

Both parties accuse the other of trying to stack the D.C. Circuit which is currently even with four Republicans and four Democrats.

Sen. Charles E. Grassley, R-Iowa and ranking member of the Senate Judiciary Committee, said senior Democrats have cited the need to “switch the majority” on the D.C. Circuit, which is the nation’s second most powerful court, behind only the U.S. Supreme Court.

Grassley, the first of four witnesses to testify, reminded the House Judiciary Committee he introduced the Court Efficiency Act in May to remove one of the 11 seats, saying it would save taxpayers money, noting each federal judgeship, with benefits, costs about $1 million a year.

He suggested focusing on reallocating judicial resources to courts that have emergencies instead of focusing on confirming judges he said are not needed. Grassley had to leave and was not available during the questioning portion of the hearing.

Nan Aron, president and founder of the Alliance for Justice, was the only witness in favor of filling the D.C. Circuit vacancies, emphasizing a number of times that the president is fulfilling his constitutional obligation to fill vacancies on the federal courts.

“When there are vacancies on the federal bench, the president is required to nominate new judges subject, of course, to the advice and consent of the Senate,” she said. “Article II, Section 2, of the Constitution is very clear on this matter. It’s not a negotiable point.”

Rep. Spencer Bachus, R-Ala., referred to a 2006 letter Sen. Charles E. Schumer, D-NY, and other senators wrote to Sen. Arlen Spector, who then chaired the Senate Judiciary Committee, urging the committee to tend to actual emergencies before tending to then-President George W. Bush’s nominations to the D.C. Circuit.

“They said the caseload wasn’t sufficient,” Bachus said. “They said emergency vacancies should clearly take priority.”

Aron said the last paragraph, the one Bachus specifically referred to, was taken out of context and that the authors were saying not to rush the D.C. Circuit nominees through confirmation before the American Bar Association had an opportunity to evaluate them.

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, argued additional judges are not needed on the D.C. Circuit, that it already has the lowest caseload in the nation.

Aron said the court also has the most complex cases, but Severino said the Second, Fifth and Ninth circuits have three times as many cases disposed of annually per active judge and four times as many as judges in the Eleventh Circuit.

Severino questioned Aron’s use of pending caseloads as a gauge for the necessity of judges, saying someone is trying to find the one statistic in which the D.C. Circuit is not dead last.

Aron argued pending caseloads, the measure she said is used by the Judicial Conference, is more accurate. She also said the conference cannot consider senior judges when planning for future caseload needs because it is impossible to know what a senior judge is going to do.

Rep. Douglas Collins, R-Ga., said judicial appointments are political and that Obama’s nominations for the D.C. Circuit were picked because he does not like the court’s decisions.

Aron called the D.C. Circuit “the crown jewel” of the federal court system, noting it hears the most complicated cases, has judges with superior analytical skills and is a “farm team” for the Supreme Court. She said the president understands the critical importance of the court.

“You just made my case,” Collins said. “The president wants the crown jewel.”

“No,” Aron objected, reiterating he needs to fill vacancies, but she was cut off by Rep. Trey Gowdy, R-S.C., who pressured Aron to name a D.C. Circuit judge whose appointment she thought was political.

Aron at first resisted, but then said Judge Brett M. Kavanaugh, a George W. Bush appointee, was selected because he was the prosecutor during the Whitewater investigation into real estate investments of Bill and Hillary Clinton and that he authored the Starr report, an account of the investigation by independent counsel Kenneth Starr.

“Does that mean he’s not a good judge?” Gowdy asked.

Aron said qualified lawyers are a dime a dozen and that Judge Kavanaugh was selected because Bush knew if he was confirmed, he “would pretty much carry out President Bush’s agenda and he has.”

Rep. Hank Johnson, D-Ga., reminded his colleagues the judiciary represents less than 1 percent of the federal budget and is not driving deficits or debt.

“We know that this failure to adequately staff our judiciary is not about saving taxpayer dollars,” he said. “It’s really about forming a judiciary that has certain ideological views and it’s my friends on the other side of the aisle who seem to have that aspiration and have for some time.”

Johnson said Republicans are blocking judicial nominations throughout the country and treating its co-equal branch of the government, the judiciary, as its stepchild, which he added is wrong.

Aron agreed, saying 90 percent of the vacancies are because Republicans are blocking the progress of candidates.

Also testifying was Ambassador C. Boyden Gray of Boyden Gray & Associates, a former White House counsel under Bush, who accused Obama of making a high priority of “tilting” the D.C. Circuit’s political balance, something he said threatens the collegiality of the court. He also said too many judges creates unpredictability and a lack of coherence.

“I think that Sen. Schumer hit the nail on the head when he said ‘We will fill up this court in one way or another,’ but it’s based on the premise that somehow this court, the way that it has operated, it has overruled, reversed or blocked the current White House more than previous White Houses and this is just an erroneous assumption,” Gray said

He also said the data shows Bush was overruled 18.8 percent of the time, compared to 16.7 percent for Obama.

The hearing record, available for viewing at http://judiciary.house.gov, will remain open for five legislative days.