Goodlatte, b.A.A.d. logic

On October 30 I sent the following email to rob:

Have you been following this? Insane.

http://legaltimes.typepad.com/blt/2013/10/democrats-republicans-spar-over-dc-circuit.html

http://www.courthousenews.com/2013/10/30/62473.htm

I might turn this into a post.

He said nothing so I thought it un-postworthy. Recent comments (namely rob's directive to "write that shit z") spurred me to action.

As you can see in the links I emailed rob almost a month ago, Rep. Bob Goodlatte of Virginia accused President Obama of "court packing" the Court of Appeals for the DC Circuit, alleging that the President's "three nominations, with the confirmation of another, is intended to pack the D.C. Circuit to capacity of 11 authorized judgeships." As George Will would say ... Well.

The term "court packing" came about when aspects of FDR's New Deal legislation were struck down by the Supreme Court in several 5-4 votes. Article III of the Constitution requires a Supreme Court but it doesn't say how many Justices must sit on its bench. Originally there were 6 and currently there are 9 (nice), but at one point there were 10 and at another time there were 8; for a while there were only 5. FDR decided that he would push his New Deal programs through the Supreme Court by increasing the number of Justices from 9 to 15, the logic being that his 6 appointees would vote for his programs and thus he would always win handily by 10-5 margins. Before this happened, Justice Roberts started voting in FDR's favor and there was no need to pack the court. This is famously referred to as "the switch in time that saved nine."

More succinctly, court packing happens when the President adds more judges to a court than the court currently holds. As Rep. Goodlatte acknowledged, the Court of Appeals for the D.C. Circuit has 11 judgeships. Right now there are only 8 judges in the D.C. Circuit, thus simple arithmetic shows that 3 of the positions on this bench are currently vacant. By filling those 3 vacancies, President Obama will bring the D.C. Circuit to 11 judges. 8 + 3 = 11. Further, 11 = 11. It cannot be said that 11 > 11 or that 11 < 11. Thus, when President Obama fills the 3 vacancies on the D.C. Circuit, he is returning it to its full capacity. In fact, when he took office the D.C. Circuit had seats for 12 judges, and it was reduced to 11 in 2009! If anything, Obama has reduced the size of the D.C. Circuit! So President Obama clearly is not engaging in "court packing" by putting up 3 names for 3 empty seats on the D.C. Circuit.

I understand this and I'm an idiot. I also disdain history; it was my least favorite subject in school and I haven't taken a history class since 12th grade. Nonetheless, I know that know what court packing is, and I know that 11 = 11, thus I know that there is no court packing afoot with respect to the D.C. Circuit.

Bob Goodlatte knows this too. He's a smart man with a degree in political science from Bates and a J.D. from Washington & Lee, and 20 years of service in Congress. He knows what court packing is (again, he has a degree in poli sci from Bates), and he knows how to add 3 and 8. So he knows that there is no court packing going on here.

Do you know what I call it when someone says something that they know isn't true? Lying. Bob Goodlatte is fucking lying when he says that President Obama is trying to pack the D.C. Circuit. And that's shameful.



If I were a weasely Federalist Society lawyer I would say something like "Rep. Goodlatte said 'pack ... to capacity,' he did not explicitly accuse the President of 'court packing.' These are two completely different things." And whoever says that is fucking lying too. It's crystal clear that Rep. Goodlatte is trying to make this into something it isn't. Everyone who graduated from high school knows that the term "court packing" has a pejorative connotation and is associated with Presidential over-reaching. Rep. Goodlatte is falsely trying to make it appear that President Obama is over-reaching by using a phrase that jogs everyone's memory as being negative, even though they don't remember why.



Assuming that Rep. Goodlatte isn't lying, and that he simply wasn't paying attention at Bates or W&L, his logic is still deeply flawed. President G.W. Bush had two open seats on the Supreme Court and he nominated C.J. Roberts and J. Alito because he knew their political ideologies are similar to his and that they would vote in a way that made him happy. Did President Bush "pack the [Supreme Court] to capacity of [9] authorized judgeships"? Of course not. Bush didn't pack SCOTUS, he merely returned it to a fully armed and operational court.

Or to make an equally stupid analogy, under Rep. Goodlatte's logic the people of the state of New Jersey "pack[ed] the [Senate] to capacity of [100] authorized [senators]" when they held a special election to fill Frank Lautenberg's seat. Here's another proposition that's just as stupid: Gov. Chris Christie "pack[ed] the [Senate] to capacity of [100] authorized [senators]" when he appointed Jeffrey Chiesa as interim senator when Lautenberg died. The Senate doesn't do anything these days except shut the government down so surely they can get by with 99 senators.

Which segues nicely to my next rant. It has been argued that the D.C. Circuit doesn't need more judges because they don't hear as many cases as other appellate courts. For example, the Wall Street Journal notes that the D.C. Circuit handles "only" 149 appeals per judge, and if it had all 11 judges on board they would "only" handle 108 appeals per judge. This is a bullshit argument. The Supreme Court hears 75-80 cases a year, so by WSJ's logic we could get by with just one Justice. Further, Congress controls the number of judges in any Circuit Court under 28 USC 44, so if you think there are too many judges in the D.C. Circuit then get Congress to shrink it!

Perhaps most egregiously, these nattering Republicans ignore the fact that the D.C. Circuit has 6 Senior Judges, 5 of whom were appointed by Presidents Reagan or G.H.W. Bush. After judges take Senior status they still hear cases, albeit at a reduced workload of anywhere from 25% to 75%, depending on how much any individual judge wants to work. So even if President Obama's nominees are confirmed, 9 of the 17 judges on the D.C. Circuit will be Republican appointees. Given that an appellate panel has 3 judges, there will be 1,080 possible panels of D.C. Circuit judges that have 2 or more Republican appointees (9 x 8 x 15 = 1080). By contrast, there will be 840 possible panels that have 2 or more Democrat appointees (8 x 7 x 15 = 840).

So stop lying and whining, you Republican ninnies. And this is all the Democrats' fault in the first place.

The person who wins the presidential election gets various powers to do all sorts of important stuff, including the appointment power. Some of that is highly visible, like picking federal judges. Other aspects are not that well publicized, like appointing the Librarian of Congress or the Deputy Director of the USPTO. Regardless of how much press these nominations get they are all important, and they are one of many reasons why presidential elections are important. It seems like every four years some boob at the Washington Post writes an editorial about how this election is the most important election ever because Justices X, Y, and Z are old and will soon die or retire, and the winner of the election will therefore shape the Supreme Court for years to come. Informed voters know this and vote accordingly. All Presidential nominees deserve an up or down vote regardless of which party holds what office, and in my view they should be confirmed unless they are blatantly unqualified for the job or if they have some blemish on their record that calls their character and fitness into question. You know I'm right when Charles Krauthammer agrees with me -- "Elections have consequences"!

Sorry Rep. Goodlatte, your candidate lost. I understand that you're unhappy, but don't lie to get what you want. It's unseemly. Just keep calm and if your candidate wins in 2016 you can unpack all the courts you want.