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The D.C. Circuit Will Tilt Even Further To The Left

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Judge David Tatel announced that he will take senior status from the D.C. Circuit. By my count, he became eligible for senior status in October 2008, at the tail-end of the Bush 43 administration. Now, one month into the Biden Administration, he has decided to assume senior status. For the foreseeable future, the D.C. Circuit will have a remarkable leftward tilt not seen since the 1960s. Let’s break down the numbers.

There are currently only four active judges appointed by Republican Presidents: Henderson, Katsas, Rao, and Walker. And there are seven active judges appointed by Democratic presidents: Srinivasan, Rogers, Tatel, Garland, Millett, Pillard, and Wilkins.  During the height of the Bush 41 administration, before Judge Thomas went to the Supreme Court, the balance was also 7-4. R.B. Ginsburg, Edwards, Mikvah, and Wald were the only Democratic appointments.

Next, let’s consider senior status positions. At present, Judge Edwards is the lone remaining Carter judge in senior status. There are four senior status judges appointed by Presidents Reagan and Bush 41: Silberman, Ginsburg, Sentelle, and Randolph. (During the Trump Administration, Judges Brown and Griffin retired outright, so there are no W. Bush senior status judges) Thus, there are 16 total judges who can be assigned to panels: 8 total Republican-appointed judges (4 active, 4 senior), and 8 total Democratic-appointed judges (7 active, 1 senior). Not all of the senior judges take the same load of cases, but the court is somewhat at equipoise now.

Soon enough, Judge Garland will (almost certainly) be replaced by Judge Brown Jackson. That swap will keep the balance at 7-4, without adding a new senior status judge. But Judge Tatel will join the ranks of senior status judges. Then, there will be a total of 17 total judges who can be assigned to panels, 9 Democratic-appointed, and 8 Republican-appointed. And, if the current exodus of Clinton nominees continues, whenJudge Rogers takes senior status, the breakdown will be 10-8.

In time, the Reagan and Bush 41 senior judges may decide to reduce their caseload further, or retire outright. And Judge Henderson may opt to take senior status. (She became eligible in 2009). Thus, the en banc court would tilt 8-3. Drawing a 2-R panel will become very, very difficult. My colleague Adam White, a historian of the D.C. Circuit, tells me that this shift would be the biggest imbalance since 1968, when there were only two Republican appointed judges: Burger and Danaher, both Eisenhower nominees.

For the foreseeable future, the second highest court in the land will have a significant leftward tilt. Judges Katsas, Rao, and Walker will be a lonely bunch. And, for what it’s worth, Judge Walker will be eligible for senior status in 2047. Meanwhile, the highest court in the land will have a significant rightward tilt. The reversal rate will be high. The D.C. Circuit may yet become the new Ninth Circuit.


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