Senator Charles E. Grassley, Republican of Iowa, is pushing a bill called the Court Efficiency Act, which would take away three unfilled seats on the D.C. Circuit Court of Appeals, and add one seat to both the Second and Eleventh Circuits.
Senator Grassley is adamant that “no matter how you slice it,” the D.C. Circuit ranks last or almost last in nearly every category that measures workload. “The D.C. Circuit has 108 appeals filed per authorized judgeship, the lowest in the nation,” according to a statement from Senator Grassley’s office.
But do the numbers add up?
According to Grassley's critics: No.
White House spokesman Jay Carney told the press that "the caseload is higher now than it was in 2005 when some of the same Republican senators were arguing for the necessity of confirming President Bush's nominees to that court."
Instead, critics suspect Grassley is just trying to preserve a conservative majority on the D.C. Circuit by getting rid of seats. That way, President Obama can't nominate more liberal judges.
Glenn Kessler, writing for The Washington Post, rolled up his statistical shirt sleeves to get to the bottom of the math.
Grassley's conclusion relies on the number of appeals already filed in the D.C. Circuit. In 2005, 1,379 appeals commenced, compared to 1,193 appeals in 2012. That's a decline of about 200 appeals filed.
Carney's statistic, on the other hand, comes from counting pending appeals. In March of 2005, there were 1,313 pending appeals, compared to 1,315 pending appeals in September of 2012. There are eight judges now, compared to nine or 10 (and briefly 11) judges in 2005, meaning there are now more cases pending per judge.
Kessler's conclusion? It's a draw.
Russell Wheeler, an expert on the courts at the Brookings Institution, guided Kessler through the mountain of statistics about court performance. According to Wheeler, the problem is "we don't know the answer to the question of how we compare these caseloads."
The Pinocchio Test
So at the end of the day, for Grassley to say with such utter conviction that the D.C. Circuit "is the least busy circuit in the country" is nothing short of pulling a Pinocchio, The Post piece concludes.
As Chief Justice John Roberts Jr. explained in a 2005 lecture -- "What Makes the D.C. Circuit Different?" -- this court is special. Ian Millhiser, writing for ThinkProgress.org, points out that arguing about the caseload misses the point when it comes to the D.C. Circuit:
Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits.
Statistical analysis is essentially a form of nerdy interpretive art. If you want to arrive at a particular conclusion, you can choose the stats that support it. According to critics, that is precisely what Grassley did -- except he affirmatively discounted any other valid interpretation, which is what critics feel is highly irresponsible.
- What Makes the D.C. Circuit Different? (The New York Times)
- Meet the D.C. Circuit Nominees: Millett, Pillard, Wilkins (FindLaw's D.C. Circuit Blog)
- Obama Nominates Caitlin Halligan, Sri Srinivasan to D.C. Circuit (FindLaw's D.C. Circuit Blog)
- Will the 2nd Circuit Get Another Judge? (FindLaw's Second Circuit Blog)