Which Federal Appeals Court Vacancies Should Take Priority?

  • October 29, 2013
  • By Maggie Clark

Seven Republican attorneys general say President Obama is stacking the deck against states that sue federal agencies by filling vacancies on the U.S. Court of Appeals in the District of Columbia Circuit.

The D.C. Circuit currently has three open seats, but also has the lowest workload of any circuit, according to data from the Administrative Office of the U.S. Courts. The D.C.-based court hears all cases against federal agencies and is a frequent stop for state attorneys general challenging federal regulations.

By filling the D.C. vacancies before filling vacancies in circuits with heavier caseloads, the attorneys general argued the president is packing the D.C. court with judges who share his political preferences and will support his agencies when they’re challenged by the states.

“It's inappropriate for the Obama administration to inject politics into decisions about how best to allocate judicial resources by attempting to unnecessarily add judges to the D.C. Circuit when other circuits are in much greater need," said Oklahoma Attorney General Scott Pruitt in a letter to the Senate Judiciary Committee. The letter was signed by the attorneys general of Alabama, Arizona, Georgia, Nebraska, Oklahoma, South Carolina and Texas.

Texas recently lost a case in the D.C. Circuit Court of Appeals challenging the Environmental Protection Agency rules over greenhouse gas emissions and air pollution. Texas appealed the ruling and it will be part of a larger case argued at the Supreme Court in the spring. In 2011, six of the seven attorneys general lost their states’ challenge to the Affordable Care Act before the D.C. court. Oklahoma did not join the multistate challenge against the health care law.

Since he took office in 2009, Obama has made 173 judicial appointments. There are currently 91 judicial vacancies in the federal courts, according to the court administrative office. Obama has nominated 50 people to fill some of those open jobs, but the nominations are pending in the U.S. Senate. The Senate is debating the nomination of Patricia Millett to the DC appellate court.

For a list judicial appointments by every president since Franklin Roosevelt, click here.

The attorneys general asked the Senate to pass the “Court Efficiency Act of 2013.” The bill would add one judge to the 2nd Circuit Court of Appeals (which serves Connecticut, New York and Vermont and had the second-highest number of pending cases at the end of 2012), add one judge to the 11th Circuit Court of Appeals (which serves Alabama, Florida and Georgia and had the fifth-highest number of pending cases at the end of 2012), and reduce the number of judges on the U.S. Court of Appeals from 11 to eight.

The bill is sponsored by Republicans and unlikely to make it out of the Democratic-controlled Senate Judiciary Committee. Sen. Patrick Leahy, Judiciary chairman, said in a statement, "Now that it is a Democratic president making nominations to those same seats, Senate Republicans have dusted off their old arguments against filling vacancies on the D.C. Circuit.”