Did the Obama Nominees Shift The D.C. Circuit?

November 1st, 2015

Speaking at the National Press Club, D.C. Circuit Judge Sri Srinivasan explained that President Obama’s four recent appointments to the D.C. Circuit (including himself) did not shift the court. Here are his remarks as reported by Josh Gerstein (I could not find a recording of the event).

“On my court, no one had been confirmed to the court for seven years at the time that I was confirmed,” said Srinivasan, noting that the D.C. Circuit’s active judges before he arrived included four Republican appointees and three Democrats. “In quite rapid succession, four of us who were appointed by President Obama were appointed in the matter of a few months.”

“If we lived in a world where we had the rule of a judge, rather than the rule of law, you would have seen an absolute sea change, an avulsive change in the law as it was interpreted, applied and rendered by our court,” the judge added. “And I think in at least some spheres there was probably some apprehension about that — or glee about that — depending on one’s perspective [but] we didn’t see an immediate sea change in decisions, we didn’t see an overruling of prior precedent, we didn’t see an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with.

(Before I get to the merits, as a Texas property professor who demands his students know the difference between accretion and avulsion, I appreciate his choice of adjective.)

Srinivan’s last comment about the en banc proceeding is the most interesting, and must be read in the context of the history of the D.C. Circuit. (I thank Adam White, a true D.C. Circuit historian, for his help with this post). In a different era, it was newly-appointed Republicans who were altering the direction of the Circuit Courts through the en banc proceeding.  A 1989 note in the Harvard Law Review, titled The Politics of En Banc Review explained that President Reagan’s appointments to the D.C. Circuit shifted the court’s precedents in an avulsive manner:

Critics have alleged that ideological motivations underlie this more frequent recourse to en banc review, implicating judges appointed by President Reagan as the prime culprits. A recent article in the Wall Street Journal boldly proclaimed that en banc review ‘has become a weapon for some Reagan appointees seeking to steer federal courts in a more conservative direction.’ Despite this growing criticism, some Reagan appointees have endorsed greater use of the procedure to express the judicial preferences of their newly achieved majorities.3

Within the last two years, shifts in the balance of power on some of the circuit courts have erupted in heated disputes involving en banc rehearings, particularly as Reagan appointees attain majorities in a greater number of circuits.4 For example, in Bartlett ex rel. Neuman v. Bowen, the D.C. Circuit reversed three of its previous orders that had granted suggestions for en banc rehearings of panel rulings. In an opinion accompanying the Bartlett order, Judge Edwards criticized the Reagan appointees for engaging in what he believed was an abuse of the en banc procedure. In particular, he accused them of reducing the exceptional importance test to a ‘self-serving and result-oriented criterion.’7Even Judge Silberman, the Reagan appointee who voted with the Democratic appointees in Bartlett to reverse the earlier decisions to rehear the appeals en banc, noted with disapproval the ‘increasing number of cases designated for en banc rehearing.’

In this sense, the four new Obama appointees to the D.C. Circuit have not used the en banc proceeding for avulsive changes in the law. But this isn’t to say that the change in composition has had no effect on its en banc proceedings. Of course, I am talking about the D.C. Circuit’s decision to grant rehearing en banc in Halbig v. Burwell, while a petition for certiorari in King v. Burwell was pending before the Supreme Court.

Srinivasan is absolutely right that some were “glee[ful]” about the new D.C. Circuit’s ability to reverse the panel decision by Judges Griffith and Randolph. In a piece titled, “Obamacare is Safe,” Emily Bazelon wrote in Slate: “The D.C. Circuit (finally!) has four Obama appointees on it,” and so Democrats now outnumber Republicans. “Presto,” she wrote, a loss today “can be a winner tomorrow.” In the New Yorker Jeff Toobin wrote:

By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books.

And don’t forget that Sen. Majority Leader Harry Reid gave the court something of a black eye, when he suggested that en banc would be granted because of the new judges: “if you look at simple math, it sure does.” At the time, I explained this was a “dangerous mindset.”

In this sense, Srinivasan should be more precise when he says “we didn’t see an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with.” The government’s petition for rehearing en banc in Halbig was promptly granted, while a cert petition was pending. At most, this grant only served the purpose of keeping the case away from the Justices for several more months, as there were several other cases percolating from other circuits. The issue of statutory interpretation wasn’t really one that was essential for the D.C. Circuit to resolve for itself.

As Adam White noted in an WSJ editorial last summer, Halbig didn’t fit the criteria for en banc review under the D.C. Circuit’s stringent standards, for reasons aptly stated by D.C. Circuit Judge Harry Edwards:

Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration’s supporters seem to believe that Halbig has “exceptional importance” because the Affordable Care Act is exceptionally important to them and the panel’s decision was, in their eyes, wrong. But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards—the very D.C. Circuit judge who dissented from the panel decision in Halbig.

“Obviously, no judge agrees with all of the decisions handed down in the circuit,” Mr. Edwards wrote in a 1987 case involving the Department of Health and Human Services. But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that isindispensable to judicial decision-making” [his italics]. Rather, en banc review must be reserved for “the rarest of circumstances,” Mr. Edwards wrote, cases with “real significance to the legal process.”

Mr. Edwards played an important role in the court’s history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

Subsequent chief judges maintained this trend, rehearing roughly one case en banc each year. His successor, Douglas Ginsburg, wrote in the journal Judicature last year that the court’s steep decline in en banc rehearings “reflect[s] in part the increasing level of mutual trust and respect among the judges.”

The D.C. Circuit’s current chief judge is Merrick Garland, a Bill Clinton appointee, but the decision to grant the government’s request for an en banc rehearing lies with a majority vote of all 11 active judges, who have an open-ended timeline for issuing a ruling.

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality. The controversy surrounding HHS’s federal exchanges should be resolved promptly by the Supreme Court. There’s no need to tarry any longer at the D.C. Circuit.

Further, as Jonathan Adler noted at the time, granting en banc would only have the effect of potentially delaying the Supreme Court’s consideration of the issue.

An additional consideration for the D.C. Circuit in Halbig is whether en banc review could unnecessarily delay final resolution of the underlying question.  Both the D.C. Circuit and U.S. Court of Appeals for the Fourth Circuit expedited their consideration of the challenges to the IRS tax credits rule out of a recognition that there are significant reliance issues for both states and insured individuals.  States are already preparing to deal with the possibility that Halbig is upheld.  If the IRS rule is invalid, some states that refused to create their own exchanges may reconsider.  The sooner they know the outcome, the sooner they can make such decisions. (Ditto those states with their own exchanges that are considering whether to turn the exchanges over to the feds.)  If, as some suspect, Supreme Court review of this issue is inevitable, en banc rehearing could push off a final resolution of this question until the 2015-16 term. Even if the en banc rehearing discourages the Supreme Court from accepting certiorari in King — as Halbig critics hope — there are still two more cases pending against the rule.  Of course Halbig proponents don’t want to see an en banc review for the same reason.

Judge Sutton in a statement concurring with the denial of rehearing explained that some cases may be wrong but not en banc worthy–especially because the Supreme Court can always clean up the mess.

Skepticism about the value of merits based en banc review reflects one other thing: We are not the only Article III judges concerned with deciding cases correctly. Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.

Judge Sutton’s insights are particularly apt for Halbig–especially where a petition for certiorari was already waiting at One First Street. And, as further proof that Judge Sutton was right, at least four Justices voted to grant certiorari in King, effectively disregarding the D.C. Circuit’s efforts to keep it for itself. This is even more remarkable because only three Justices voted to reverse, so at least one Justice (probably two) in the majority, recognized that it was important to resolve the case right away, even if the government would prevail. This casts serious doubt on the judgment of those who voted to grant rehearing. What did the D.C. Circuit Judges who voted to rehear the case have to gain by doing so?

Recall TPM’s reporting of Mike Carvin’s thoughts on the issue:

“I don’t know that four justices, who are needed to [take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think,” Carvin told TPM on Thursday, after a Heritage Foundation event previewing the upcoming Supreme Court term. “This is a hugely important case.” …

“There’s plenty of cases where [Supreme Court justices] take important issues even if there’s no circuit split — like the gay marriage cases, they might take those,” Carvin said. “If you’ve gone through that process and you don’t really care what [the Obama-appointed judges] think — because I’m not going to lose any Republican-appointed judges’ votes on the en banc — then I think the calculus would be, well let’s take it now and get it resolved.”

In hindsight–his trademark bluster aside–Carvin was right about the four votes for certiorari. (Mike told me in an interview that these comments were made  “off the record,” and were offered “in reaction to Reid’s point that being an Obama appointee was outcome determinant.”).

I have a chapter in my book titled Nuclear Fallout. This is history worth examining away from the heat of the moment.