The DC Circuit's Eleventh Seat

The US Court of Appeals for the D.C. Circuit technically has 12 seats allotted to it. For years, however, the 11th and 12th seats have remained empty. During the Clinton administration, Senate Republicans adamantly opposed filling them, blocking the nominations of distinguished lawyers Allen Snyder and Elena Kagan (now dean of Harvard Law School) on the grounds that the DC Circuit's relatively light caseload did not warrant it. Although the court's caseload has not increased, President Bush last week nominated Peter Keisler to fill the 11th seat. (Brett Kavanaugh, recently confirmed, took the 10th.) Mr. Keisler's name was floated during President Bush's first term for a Maryland-designated seat on the Fourth Circuit, but Maryland Senators Paul Sarbanes and Barbara Mikulski objected -- successfully -- because Mr. Keisler, currently head of the Justice Department's Civil Division, had never practiced law in Maryland.

It will be interesting to see whether Senate Republicans hum a different tune on the DC Circuit when considering the nomination of Mr. Keisler, one of the founding members of the Federalist Society. W hen the year was 1997 and the nominating President was Clinton, here's what they had to say about -- and against -- filling the 11th seat on the second most important court in the country:

• Senator Grassley (R-IA): “confidently conclude[d] 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.”
• Senator Kyl (R-AZ): “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.”
• Senator Sessions (R-AL): "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."
• Senator Lott (R-MS): the D.C. Circuit "is more than adequately staffed . . . They have more judges than they need."
• Senator Thurmond: "I do not feel that this vacancy needs to be filled. . . . The caseload of the D.C. Circuit is considerably lower than any other circuit court in the Nation. . . . Moreover, the caseload of the D.C. Circuit is falling, not rising. Statistics from the Administrative Office show a decline in filings in the D.C. circuit over the past year."
• Senator Ashcroft. "The U.S. Court of Appeals for the District of Columbia Circuit is a judicial circuit which has the lowest caseload of any of the judicial circuits in the country. . . . It appears that filling this vacancy would be an inefficient use of judicial resources. . . . The D.C. circuit is the least populated with work."