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Senate must act on appeals court vacancies

By Patricia M. Wald,

Patricia M. Wald, who is retired, served as a judge on the U.S. Court of Appeals for the D.C. Circuit from 1979 to 1999, including five years as chief judge.

Pending before the Senate are nominations to fill two of the four vacant judgeships on the U.S. Court of Appeals for the District of Columbia Circuit. This court has exclusive jurisdiction over many vital national security challenges and hears the bulk of appeals from the major regulatory agencies of the federal government. Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.

The D.C. Circuit has 11 judgeships but only seven active judges. There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.

The court’s vacancies date to 2005, and it has not received a new appointment since 2006. The number of pending cases per judge has grown from 119 in 2005 to 188 today.A great many of these are not easy cases. The D.C. Circuit hears the most complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary Americans’ lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more. These cases can require thousands of hours of preparation by the judges, often consuming days of argument, involving hundreds of parties and interveners, and necessitating dozens of briefs and thousands of pages of record — all of which culminates in lengthy, technically intricate legal opinions.

I served on the D.C. Circuit for more than 20 years and as its chief judge for almost five. My colleagues and I worked as steadily and intensively as judges on other circuits even if they may have heard more cases. The nature of the D.C. Circuit’s caseload is what sets it apart from other courts. The U.S. Judicial Conference reviews this caseload periodically and makes recommendations to Congress about the court’s structure. In 2009, the conference recommended, based on its review, that the circuit’s 12th judgeship be eliminated. This apolitical process is the proper way to determine the circuit’s needs, rather than in the more highly charged context of individual confirmations.

During my two-decade tenure, 11 active judges were sitting a majority of the time; today, the court has only 64 percent of its authorized active judges.This precipitous decline manifests in the way the court operates. And while the D.C. Circuit has five senior judges, they may opt out of the most complex regulatory cases and do not sit en banc. They also choose the periods during which they will sit, which can affect the randomization of assignment of judges to cases.

There is, moreover, a subtle constitutional dynamic at work here: The president nominates and the Senate confirms federal judges for life. While some presidents may not encounter any vacancies during their administration, over time the constitutional schemata ensures that the makeup of courts reflects the choices of changing presidents and the “advise and consent” of changing Senates. Since the circuit courts’ structure was established in 1948, President Obama is the first president not to have a single judge confirmed to the D.C. Circuit during his first full term. The constitutional system of nomination and confirmation can work only if there is good faith on the part of both the president and the Senate to move qualified nominees along, rather than withholding consent for political reasons. I recall my own difficult confirmation 35 years ago as the first female judge on the circuit; eminent senators such as Barry Goldwater, Thad Cochran and Alan Simpson voted to confirm me regardless of differences in party or general political philosophy.

The two D.C. Circuit nominees before the Senate are exceedingly well qualified. Caitlin Halligan served as my law clerk during the 1995-96 term, working on cases involving the Department of Health and Human Services, the Immigration and Naturalization Service, the Federal Communications Commission and diverse other topics. She later clerked for Supreme Court Justice Stephen Breyer. She also served as New York solicitor general and general counsel for the Manhattan district attorney’s office, as well as being a partner in a major law firm. The other nominee, Sri Srinivasan, has similarly impressive credentials and a reputation that surely merits prompt and serious consideration of his nomination.

There is a tradition in the D.C. Circuit of spirited differences among judges on the most important legal issues of our time. My experience, however, was that deliberations generally focused on the legal and real-world consequences of decisions and reflected a premium on rational thinking and intellectual prowess, not personal philosophy or policy preferences. It is in that vein that I urge the Senate to confirm the two pending nominations to the D.C. Circuit, so that this eminent court can live up to its full potential in our country’s judicial work.

Read more from PostOpinions: Jonathan Bernstein: Constant GOP filibusters of judicial nominations

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