As it happens, the Republicans have the better of the current argument. They aren’t conducting a “blockade” that violates past norms. President Barack Obama’s nominees are getting confirmed at a faster pace than Bush’s were at the same point in his presidency. One of Obama’s nominees, Sri Srinivasan, was unanimously confirmed in May.
And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court’s chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that “there wouldn’t be enough work to go around” if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.
I’ll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit’s caseload is. What they care about is the court’s ideological balance.