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D.C. CIrcuit Caseload, Nominees Srinivasan, Chen, Dorsey

Grassley Judiciary Committee Executive Committee Statement

Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Judiciary Committee Executive Meeting
Nominations of Srikanth Srinivasan, to be United States Circuit Judge for the District of Columbia Circuit, Raymond Chen, to be United States Circuit Judge for the Federal Circuit, and Jennifer Dorsey, to be United States District Judge for the District of Nevada
Thursday, May 16, 2013

Mr. Chairman:

Last week we held over three nominees and I understand you want to move them out today, but I have a few remarks to make.

First, we have a nomination to the Circuit Court for the District of Columbia. It is well understood and accepted that nominations to the D.C. Circuit deserve special scrutiny. The Court of Appeals for the D.C. Circuit hears cases affecting all Americans.

At present, there are four active judges on the court who were appointed by Republican presidents and three active judges appointed by Democratic presidents. Should Mr. Srinivasan be confirmed, the court will be in evenly divided, in terms of the appointing President’s party.

Yet despite this near-parity, there are those who claim that the Court is way out of balance. One Senator has argued that the court is dominated by the hard right, citing decisions which limited government action by the Obama Administration’s EPA and the SEC.

The Washington Post wrote about a White House effort “to tilt in its favor” the D.C. Circuit. The paper went on to say “Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican –led House and a polarized Senate.”

Mr. Chairman, this type of argument ought to concern each of us. The political questions are appropriately left to the legislative branch of government. Those who advocate for a type of court-packing, reminiscent of the FDR era, to obtain an advantage in public policy debates, misunderstand the purpose of our Courts. They are to resolve cases and controversies.

When they do so, in a manner that the losing party doesn’t like, the response should not be for a cry to pack the court. Yet, that is the response we have seen – a demand to “fill up the D.C. circuit one way or another.”

Packing the court because it has issued rulings against the administration is a cynical approach to the judicial branch. It adds to the public’s dismay and concern with its government. As American citizens see their rights and liberties threatened, they must have confidence that the judicial branch will remain grounded in the rule of law, not based on public opinion or political factors.

Certainly this week we have had scandals that demonstrate the danger of overheating the politics of every issue and turning every policy dispute into a non-stop campaign issue.

So rather than packing the court in hopes of obtaining more favorable rulings, our consideration of judicial nominations for the D.C. Circuit should be even more measured.

It is evident that the D.C. Circuit is the least busy circuit court. In fact, it ranks last or almost last in nearly every category that measures workload.

I have presented those statistics, based on the Administrative Office of the U.S. Courts, and will not repeat them at this point. And I am sure everyone on the committee knows that I have introduced legislation to reallocate two unnecessary seats to circuits with much higher workload.

I understand there may not be unanimous agreement on this proposition. But I would remind everyone that I have been concerned about this for a number of years.

In fact, my participation in this goes back to the early 1990s when I was on the only court study committee that the Congress has ever set up to review the activities of the entire federal judicial system. Later, as Chair of the Administrative Oversight and the Courts Subcommittee, I conducted a study of the circuit courts’ workload. So this has been something that has been on my mind for a long time.

It has been a long while since this was reviewed. Mr. Chairman, we need to examine this issue. We need to hold hearings on the D.C. Circuit and examine its workload.

I would hope that effort would be underway before we move on any further D.C. Circuit nominations, beyond that of the current nominee.

Let me turn to this particular nomination. It is evident that Mr. Srinivasan is a talented attorney. His education, training, experience, and temperament are impressive. I am not certain of his judicial philosophy, but his hearing did not give me a reason to be concerned. In fact, I think most of my colleagues, if not all, were impressed with this nominee.

It was surprising, therefore, that even before his hearing ended, and again immediately thereafter, concerns were raised that his nomination might be filibustered.

Those concerns, I believe were not only unfounded, but were simply put out there as further justification to call for the President to pack the D.C. Circuit.

In any event, we are prepared to move forward with this nomination today. But, in regard to further nominees to this court, there’s going to be a need to show the seats need to be filled.

And, that’s going to be a tough row to hoe, especially when members on the other side were convinced seats didn’t need to be filled a few years ago. And now, the caseload is even less.

With regard to Mr. Chen, I know of no objection to that nomination to the Federal Circuit.

Finally, we have on the agenda the nomination of Jennifer Dorsey, for the District of Nevada.

There is concern on the Dorsey nomination. I think all members are aware of the press accounts of campaign contributions which were made at the time this nomination was under consideration.

Perhaps we will have an opportunity to further explore exactly what took place, but I am concerned about the appearances and how such actions might undermine public confidence in our judiciary. Again, given the particular events of this week, I think there is a higher level of sensitivity on how our public bodies should behave. At this point, I am not prepared to support that nomination.

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