When the Senate Judiciary Committee voted last week to approve Miguel Estrada’s nomination to the U.S. Circuit Court of Appeals for the District of Columbia, the New York Times noted that the court is “widely viewed as second in importance only to the Supreme Court.” Virtually every other news account makes the same point. There are 11 other federal circuit courts of appeal scattered across the country. What makes the D.C. court so special?
Actually, legal experts agree, nothing much. The real reason most people say the court is so important, it turns out, is that other people have been saying the same thing for years. According to the Lexis-Nexis database, the phrase “second most important court” has appeared in articles about the D.C. Circuit 44 times since 1986.
How did the D.C. court acquire its reputation? For one thing, it has a prestigious alumni association. Three of the nine current Supreme Court justices—Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg—once sat as judges on the D.C. Court of Appeals. Then there’s the court’s wonky caseload. Because it’s located in the nation’s capital, where a huge number of federal agencies are based, the D.C. Circuit’s docket is heavy on administrative appeals—that is, cases requiring it to rule on the legality of government action. Some court-watchers assume that a disproportionate number of these appeals end up before the U.S. Supreme Court simply because they deal with important issues.
But the problem with the wonky-caseload theory is that it’s not really true. In each ofthe terms ending in 1999, 2000, and 2001 (the most recent for which records are readily available), the Supremes took no more than three (out of approximately 80) cases from the D.C. Circuit. Over the same time period, it reviewed as many as 16 from the mammoth (and controversial) 9th Circuit, which is based in California, and eight from the 2nd Circuit, which includes New York state. And while the D.C. Circuit Court of Appeals reviews a huge number of administrative appeals—in 2001, 721 of its 1,270 cases fell into the category—other circuits also see large numbers. The 9th Circuit, which handles a number of INS decisions, took on 1,119 administrative appeals the same year.
What’s true about the D.C. court is that it’s a magnet for judges with national reputations. In part, that’s because when the president wants to appoint someone to the other 11 circuits, he has to consult the region’s U.S. senators, who often lobby for friends. But the District has no senators, so the president can appoint a judge from anywhere in the country without much fuss. And then, when they get to the second-most important court in the land, they have plenty of time to schmooze with the people who could promote them to the first.
Explainer thanks Walter Dellinger of O’Melveny & Meyers, David Madden of the office of the 9th Circuit Court of Appeals, Todd David Peterson of George Washington University Law School, and Chuck Williams of the American Bar Association Supreme Court Preview.