It is time to end the tit-for-tat partisanship in the confirmation process, the author writes. Ending the D.C. Circuit judges battle

Much like the Senate confirmation process for Supreme Court justices, nominations to the powerful D.C. Circuit Court of Appeals have become politically contentious and the source of intense partisan battles. During the George W. Bush administration, Senate Democrats filibustered Miguel Estrada on seven separate occasions and succeeded in blocking him and other Bush picks. Likewise, Republican senators twice voted to block the confirmation of President Obama’s first D.C. Circuit nominee, Caitlin Halligan, before unanimously confirming a less controversial candidate, Sri Srinivasan, on May 23.

Political battles over the D.C. Circuit are understandable. Often called “the second-highest court in the land,” it serves as the final arbiter of most federal agency actions and its decisions have wide-ranging effects on regulatory policy. As President Obama recently noted, “The judges on the D.C. Circuit routinely have the final say on a broad range of cases” such that “the court’s decisions impact almost every aspect of our lives.”


The D.C. Circuit is once again at the center of political controversy, with the president’s recent nomination of three more potential judges. Make no mistake: These nominations are driven by political expediency, not the needs of our nation’s judiciary. In fact, Democrats have made clear that this is an attempt to pack the court with liberal appointees who can help advance the administration’s progressive regulatory agenda. Senate Majority Leader Harry Reid has promised to “switch the majority” on the court, while Senator Chuck Schumer has vowed to “fill up” the D.C. Circuit with more Democratic judges “one way or another.” Republicans, for their part, are poised to block the president’s most recent nominees.

For the good of the country, it is time to end the tit-for-tat partisanship that has come to infect the D.C. Circuit confirmation process. Both Republicans and Democrats agree — when it doesn’t conflict with their party’s immediate political interests — that the D.C. Circuit doesn’t need any more judges. In 2006, Democrats argued that the D.C. Circuit caseload was too meager to justify confirming any additional judges to the bench, and they blocked a highly qualified Bush nominee, Peter Keisler, on that basis. Now the roles are reversed, and Republicans are using the same arguments against additional Obama nominees.

On this point, the numbers tell the story. The D.C. Circuit’s caseload is the lowest in the country and less than half the national average. Unlike many other federal courts — which lack the resources to keep up with filed cases and have vacant judgeships formally deemed “judicial emergencies” — the D.C. Circuit’s caseload has continued to decline and the court has cancelled regularly scheduled sittings due to a lack of appeals. Indeed, in a recent survey, current D.C. Circuit judges stated that “the Court does not need additional judges” and that “if any more judges were added now, there wouldn’t be enough work to go around.”

With a full complement of judges needed to conduct the court’s business and an even partisan balance (four active judges were appointed by Democrat presidents and four by Republican presidents), now is the time to put these political battles behind us for good. That’s why I’ve cosponsored the Court Efficiency Act, which transfers two authorized judgeships from the D.C. Circuit to other courts that do have busy dockets and need them and eliminates a third as a cost-saving measure.

Even after limiting the D.C. Circuit to its current eight active judges, it will still only be roughly half as busy as the median federal appeals court. Transferring these D.C. Circuit judgeships is not only justified by the court’s relatively light caseload and the needs of other circuits, it would also help bring about a reasonable end to the destructive partisan fights to which both parties have contributed. President Obama may still nominate judges immediately to fill the seats; they will simply serve on federal appeals courts that actually need more judges.

America’s courts were designed to be non-political, to render decisions based on the merits of each case rather than partisan considerations. Likewise, vacancies should be filled based on judicial needs rather than a political agenda, and partisan fights should end at the courthouse door. These institutions — and the trust the American people place in them — are simply too important to do otherwise.

Sen. Rob Portman represents Ohio in the U.S. Senate.