Court commentary, whether by news organizations and research organizations, always focuses on the number of active judges when seeking to characterize the ideological or political balance of a circuit court. Indeed, even organizations with an interest in exaggerating conservative influence on federal courts, such as Balls & Strikes, do not count senior judges when tabulating the ideological balance of a court — nor, for that matter, did the New York Times itself, which followed the convention of only counting active judges in prior news stories discussing the balance of circuit courts. Thus it is quite odd that the NYT chose to include senior judges in its count here (and did so not just with the D.C. Circuit, but with the Fifth Circuit as well, which would be considered conservative whether or not one counts senior judges).
These were not my only concerns with the NYT story. It compared the number of judges appointed by President Biden thus far (68) with the total number appointed by Donald Trump (231). The proper comparison would have been to the number Trump had appointed at this point in his term (42).
In terms of the narrative of a conservative legal juggernaut, the story noted the legal challenges to the Biden Administration’s Social Cost of Carbon, but failed to mention that those challenges have been unsuccessfulthus far (including on the shadow docket). It also suggested the Supreme Court is poised to overrule Chevron, but failed to mention the Supreme Court passed up that opportunity last week in this term’s biggest Chevron case.