Sunday, December 15, 2002

So Bush plans to nominate two more judges to the D.C. Circuit (probably including Doug Kmiec), for a total of twelve judges there. As the Washington Post correctly notes, quite a few Republicans over the past few years strongly opposed having more than ten judges on that court, saying that there wasn't enough work to justify twelve judges. Democrats are crying foul at Bush's plans.

I think I'm going to have to side with the Democrats on this one, even though I like Doug Kmiec. Having clerked at the 6th Circuit and the D.C. Circuit, I would guess that the D.C. Circuit probably has about half the workload of the 6th Circuit. People will tell you that the D.C. Circuit has more complex cases than other circuits -- and this may be true in some regulatory areas. But the D.C. Circuit never has to deal with death penalty cases, which can be an enormous burden. (While at the 6th Circuit, I had to draft a 75-page opinion in a death penalty case where the parties had filed about 300 pages of briefs apiece and the record was several thousand pages. It was more than twice the amount of work that I did on any D.C. Circuit case.) Nor, for the most part, does the D.C. Circuit often have to deal with difficult subjects like ERISA (because most such cases arise when employees sue big companies, of which there are few if any in DC), or immigration law (these cases tend to come up mostly in the 9th Circuit), or tax law (again, not many large taxpayers in DC). So, I tend to think, like some Republican Senators and Judge Silberman of that very court, that the D.C. Circuit doesn't really need twelve judges.


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