This morning, the Senate confirmed Thomas Griffith (whose record we discussed here) to the D.C. Circuit by a 73-24 vote. NWLC's press release about the vote is here.
The D.C. Circuit is now heavily tilted to the right. Once Griffith is sworn in, of the 12 seats on the court, seven will be held by judges appointed by Republican Presidents, four by judges appointed by Democratic Presidents, and one will be vacant. President Bush has filled three of the seats on this powerful court (most recently with Janice Rogers Brown and Griffith) and has nominated Brett Kavanaugh to fill the remaining vacancy, the 12th seat.
Plenty of research shows that which President appointed a judge often is a predictor of how the judge will rule on controversial issues. For instance, see this study by Professor Cass Sunstein others, and also this one. But all you need to do is look at the records of Janice Rogers Brown and Thomas Griffith to get the picture.
How did this happen to the D.C. Circuit?
Step One. Republicans in the Senate managed to block confirmation of two Clinton Administration nominees. It wasn’t based on their qualifications – one of them is now Dean of Harvard Law School. Instead, they argued that the D.C. Circuit just didn’t need more than 10 judges. For example:
- In 1997, Senator Grassley (R-IA) said he could “confidently conclude that the D.C. Circuit does not need 12 or even 11 judges . . . At most, the D.C. Circuit is entitled to a maximum of 10 judges.”
- Also in 1997, Senator Kyl (R-AZ) said, “I plan to vote against filling [the 11th seat] and, of course, the 12th seat unless there is a significant increase in caseload or some other extraordinary circumstance.”
- In the same year, Senator Sessions (R-AL) commented that "an idle mind is the devil's workshop . . . I think it would be very unwise for us to fill a vacancy if there is any possibility that the caseload will continue to decline."
- Finally, Senator Lott (R-MS) said in 1997 that the D.C. Circuit "is more than adequately staffed . . . They have more judges than they need."
This wasn’t true then – it was just an excuse to hold the seats open for a new President to fill. In fact, the caseload was higher then than it is now. But these excuses kept these seats open, making way for:
Step Two. Now that there’s a President from their own party, these same Senators have no hesitation filling the seats they insisted didn't need to be filled. They all voted for Griffith for the 11th seat. When the Kavanaugh nomination comes up, we’ll see whether they’ll be willing to finish the job by filling the 12th seat too.
