Gray's Absurdly Dishonest Court-Packing Argument

Former Bush administration official and ambassador C. Boyden Gray makes a staggeringly dishonest argument in the Moonie Times about the three open seats on the D.C. Circuit Court of Appeals and attempts by Republicans to strip those seats so Obama can’t nominate judges to fill them.

First, the D.C. Circuit doesn’t need more judges. According to one judge on the court, “[I]f any more judges were added now, there wouldn’t be enough work to go around.” That sentiment is confirmed by statistics provided by Chief Judge Merrick Garland, a Clinton appointee to the court. Over the past decade, the number of argued cases per active judge has fallen, and the court’s six senior judges do more work than their counterparts on other courts, who tend to be older.

Blah, blah, blah. This has been debunked so many times by now. The D.C. circuit handles fewer cases, but they tend to be much more complex regulatory cases. Even the conservative Republican judge who heads the judiciary panel on court workload has said this and opposed the Republicans’ court-stripping plan.

This sudden drive to pack the D.C. Circuit is especially troubling in light of what Supreme Court Chief Justice John G. Roberts Jr. has called an “urgent need” for judges on other courts. One wonders whether the Obama administration’s energy on judicial nominations could be better directed elsewhere. A bill proposed by Sen. Chuck Grassley, Iowa Republican, would do just that — transfer three unnecessary seats from the D.C. Circuit (one of which has never been filled) to courts that need them.

There is no “sudden drive” to “pack” the DC Circuit court. It’s been operating with 7 judges and 4 empty seats for quite some time now as the Senate Republicans have obstructed all attempts to fill them. An 8th judge was finally confirmed last week.

Even worse, the president’s recent nomination spree risks politicizing an institution that is — and should be — above politics.

How fascinating. The president nominating judges to fill open seats on the court, as the constitution has required for 225 years, that’s “politicizing” the court. Stripping the court of three judges to prevent him from doing his constitutional duty on disingenuous workload grounds, that’s totally not politicizing the court. Of the 19 judges to sit on that court since 1981, 15 of them were appointed by Republicans. At no time did I ever hear Gray complaining about the political balance on the court. How convenient for him.

About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • Area Man

    Even worse, the president’s recent nomination spree risks politicizing an institution that is — and should be — above politics.

    Rumor has it that he’s planning on politicizing the law-making process by putting his own signature on the bills.

  • Gvlgeologist, FCD

    Even the people making these arguments don’t believe them. The Repubs in gov’t don’t believe them. The general rank and file don’t believe them. The talking heads at Faux Noise and talk radio don’t believe them. The only people who might believe them are the stupidest among the TP (which, granted, is a fair number).

    These arguments are merely convenient cover for the real purpose. Do I even need to say that the real purpose is to prevent a Dem from making the appointments? The real story here is power, nothing less.

    The cynicism and hypocrisy are breathtaking. I hope that the next time that a Republican is president (which, given current trends, may, FSM willing, be some time), I hope that the Dems remember this, and make the same point.