On Tuesday, Nina Pillard, the second of President Obama’s three simultaneous D.C. Circuit nominees, failed to muster the 60 votes needed for cloture in the Senate. The first nominee, Patricia Millett, met the same fate in October.
Even so, Senator Harry Reid (D-NV) has promised to advance the nomination of Judge Robert Wilkins, currently a Judge on the D.C. District court. There is no reason for the Senate to treat the Wilkins nomination any differently than it did the first two. The same reasons that caused the Senate to block the first two nominations still apply–specifically the court’s low workload, the high institutional costs of inflating the bench with unneeded jurists, and the unacceptability of nominating judges to alter judicial outcomes.
The truth is that Democrats want to remake the D.C. Circuit to give the President a regulatory blank check. The President did not announce three D.C. Circuit nominees on one day out of concern for the volume of cases the court hears. All the White House cares about is the survival of its aggressive regulatory agenda. That is why Senator Reid told Nevada Public Radio, “We’re 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.”
The irony in all of this is that, despite highly selective criticism of certain hot-button decisions, the D.C. Circuit has affirmed the Obama administration’s regulations slightly more than it did Bush era regulations. According to the federal courts’ statistics, the D.C. Circuit reversed administrative agencies in 16.7 percent of the cases it decided during the 2009-2012 reporting years. From 2001-2008, it reversed administrative agencies in 18.8% of the cases it decided. The court continues its work, steadily, non-ideologically, and with collegiality from one administration to the next.
There are good reasons for this consistent reversal rate. First, the judges of the D.C. Circuit recognize that they are judges and not politicians, and they take their judicial role seriously. Second, the court, which was once a hotbed of partisan rancor, is now characterized by a collegial ethic that is critical to the fair administration of justice. Here’s what Judge David Tatel, a Clinton appointee, said of Chief Judge Sentelle, a Reagan appointee:
We often end up on the same side even when one of our perceived allies goes the other way. In the few cases where we do come out on opposite sides, the panel splits along so-called partisan lines less than a quarter of the time… Why do two judges who are otherwise so very different so often reach the same outcomes? The answer, I think, is clear. Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us.
Despite unfounded claims to the contrary, voiced by partisans disappointed on policy grounds by specific decisions of the court, this neutral approach to the cases and parties before it is typical of how the D.C. Circuit’s judges operate.
Much of the credit for the court’s collegiality goes to its recent Chief Judges, beginning with Judge Harry Edwards, a Carter appointee whose leadership marked a deliberate course correction toward collegiality on the bench. That emphasis on collegiality was taken up his successors: Douglas Ginsburg, David Sentelle, and now Merrick Garland. Before Sentelle took senior status, for instance, Judge Tatel observed, “In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality, navigating sometimes sensitive waters with a firm but gentle oar.”
But wise chiefs are not enough to ensure a collegial court. It turns out that the size of an appellate court plays an important role in the professional relationships of its judges. “It stands to reason,” wrote Judge Edwards, “that the larger the court, the less frequently any two judges sit together and interact with each other… [I]t is easier to achieve collegiality on a court with twelve members than on one with twenty or thirty. It is easier for judges to keep up and become familiar with each other.”
Thus, “[t]he appointment of more judges to handle growing caseloads does not come without substantial costs.” As Harvie Wilkinson put it when he was Chief Judge of the Fourth Circuit: “Collegiality may be the first casualty of expansion on the federal appellate courts.”
Collegiality should be a key ingredient on every court of appeals, but nowhere more so than the D.C. Circuit–a court that is rightly known as the second highest court in the land because its administrative law decisions set the tone for judicial review of agency action nationwide. A loss of collegiality on the D.C. Circuit would be devastating to the coherence of American administrative law. Judge Wilkinson has observed: “As the number of judges rolls ever upward, the law of the circuit will become more nebulous and less distinct. Indeed, it is likely that the law of the circuit will be replaced by the law of the panel.”
The Democrats don’t want impartiality or even the appearance of impartiality. They want preordained outcomes, which is a fundamental breach of the rule of law.
Boyden Gray was White House Counsel to President George H.W. Bush, and U.S. Ambassador to the European Union under President George W. Bush. Gray served as a law clerk to Chief Justice Earl Warren on the United States Supreme Court, and is now the founding partner of Boyden Gray & Associates, a regulatory and litigation firm in Washington D.C.
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