Democrats are starting to learn how to play judicial hardball, but they still aren’t any good at it.
No president in recent memory has done as much to reshape the judiciary as Donald Trump, thanks in no small part to the Republican Party’s unprecedented efforts to prevent President Obama from confirming judicial nominees during his presidency. And, on many key economic issues, Trump’s appointees are the most conservative batch of judges appointed to the federal bench since the Herbert Hoover administration.
Democrats, however, appear to be awakening to this threat to their ability to govern. In contrast to prior versions of its party platform, which barely mentioned the courts, the Democratic Party’s 2020 party platform states that the party “will commit to creating new federal district and circuit judgeships.”
That means that, if Democrats follow through on this proposal under a President Biden, the influence of President Trump’s unusually conservative crop of judicial appointees will be diluted by Biden appointees named to fill newly created seats on the federal bench.
The proposal triggered predictable outrage from conservative activists. Both Carrie Severino, a conservative operative focused on the courts, and Randy Barnett, a law professor and leading cheerleader for judicial attacks on Obamacare, likened the platform’s proposal to add more judges to “court packing” — a practice where judges are added to a court in order to gain partisan control over that court.
The reality is more nuanced. Though the party platform does call for additional judgeships, it calls for these new seats to be created consistent with “recommendations from the Judicial Conference.” The US Judicial Conference is made up of veteran federal judges, and it routinely recommends that Congress create new judgeships to allow the judiciary to handle increasing caseloads. As the Democratic platform notes:
Since 1990, the United States has grown by one-third, the number of cases in federal district courts has increased by 38 percent, federal circuit court filings have risen by 40 percent, and federal cases involving a felony defendant are up 60 percent, but we have not expanded the federal judiciary to reflect this reality in nearly 30 years.
Currently, federal law provides for 860 permanent federal judgeships and 10 temporary ones (“temporary” typically means that the seat will not be refilled after its current occupant retires). The Judicial Conference recommends adding 70 new permanent seats, and converting eight temporary seats into permanent ones. Sixty-five of these new judges, moreover, would sit on federal district courts — the lowest level of federal judge who enjoys lifetime appointment.
Overall, the Judicial Conference’s recommendation would increase the size of the federal bench by about eight percent — hardly a transformative change to the federal judiciary, and one that’s likely to have significantly less impact than the GOP’s efforts to hold seats open during the Obama presidency.
And yet, Congress has routinely ignored the Judicial Conference’s recommendations. The Democratic platform notes that the size of the federal bench has not significantly increased since 1990, when the total number of judges increased from 757 to 842.
If enacted, in other words, the platform’s proposal would be the boldest successful plan to increase the size of the judiciary in a generation — bold enough to anger Republicans, and to potentially invite retaliation from those Republicans if the GOP regains control of the elected branches. But it is still inadequate to counter the Republican Party’s work to reshape the judiciary over the last half-decade.
Republicans transformed the federal judiciary under Trump
In February 2016, Justice Antonin Scalia died, briefly stripping the Republican Party of a majority on the Supreme Court. In the wake of Scalia’s death, Senate Republicans held the vacant seat open for more than a year until Donald Trump could fill it.
Obama Supreme Court nominee Merrick Garland was only the most high-profile victim of a near-total blockade Republicans erected in front of President Obama’s appellate court nominees.
In the final two years of the Obama presidency — the two where Republicans controlled the Senate and thus had an absolute power to block judicial confirmations — Obama successfully appointed only two federal appellate judges. And one of those judges, Kara Farnandez Stoll, was confirmed to a highly specialized court that primarily deals with patent law.
By contrast, President George W. Bush appointed 10 appeals court judges in the final two years of his presidency, despite the fact that Democrats controlled the Senate during this period.
Senate Majority Leader Mitch McConnell has made confirming Trump judges a top priority. Indeed, it’s often been the only priority in a Senate that largely ignored legislation passed by a Democratically controlled House.
In Obama’s entire first term in office, the Senate confirmed just 30 judges to federal courts of appeal. Trump, by contrast, has appointed 53 individuals to these powerful judgeships — many of them to seats that Republicans held open while Obama was still president. And Trump’s first term isn’t even over yet.
Trump, in other words, is confirming federal appellate judges at nearly twice the rate of Obama.
Moreover, powerful voices within the conservative coalition have called on Republicans to be even more aggressive in reshaping the federal bench.
One of the Federalist Society’s top leaders wanted Republicans to engage in outright court-packing
In Trump’s first year in office, Steven Calabresi, a law professor and co-chair of the conservative Federalist Society’s board of directors, released a memo to Congress proposing a massive court-packing scheme. “The optimal number of active” federal appellate judges, Calabresi wrote along with coauthor Shams Hirji, “is at least double the current number of 167 authorized judgeships (excluding the Federal Circuit), and more likely between 2.5x and 3x the current number.”
At a bare minimum, the memo proposed that Congress should increase the number of active appellate judges by more than a third, while simultaneously adding 200 new district court judgeships.
Why was such a colossal expansion of the federal appellate bench justified? Calabresi did not hide his motivations. One of his primary goals, according to the memo to Congress, was “undoing the judicial legacy of President Barack Obama.”
Calabresi’s proposal was widely excoriated, even by other prominent members of the Federalist Society. As Ilya Somin, a libertarian law professor, wrote for the conservative legal blog the Volokh Conspiracy, “court-packing is a menace to the role of judicial review as a check on the power of political majorities.” It undermines the legitimacy of the judiciary and invites retaliation if the other party regains control of the elected branches of government.
Calabresi and Hirji eventually bowed to the many critics of their proposal, removing the memo from SSRN, a website that scholars often use to circulate their work.
One of the oddest aspects of the Calabresi memo is that it would have undermined the courts’ legitimacy at the very moment when Republicans had cemented their grip on the judiciary. Democrats, by contrast, are in a very different position today than conservatives like Calabresi were in when Calabresi released his ill-fated memo. If Biden is elected president, Republican judges are likely to spend his entire presidency sabotaging his policies — and that’s assuming that Biden can get elected. The Supreme Court’s Republican majority is often actively hostile to voting rights, and it frequently sides with the GOP in election-related disputes.
It’s understandable, in other words, why Democrats might view diluting the GOP tilt of the judiciary as a less bad alternative to allowing Republicans to retain their grip on the courts.
And yet, compared to Calabresi and Hirji’s audacious proposal, the Democratic Party platform’s judicial proposal is timid. And, as Severino and Barnett’s reaction to that proposal suggests, Republicans are likely to attack any Democratic proposal to increase the size of the federal judiciary as if it were akin to Calabresi-style court-packing.
Once Republicans have convinced themselves that Democrats broke the seal on court-packing, they are likely to find something like Calabresi’s proposal much more palatable in the future.
Democrats, in other words, appear to have stumbled into a dangerous middle ground, at least as far as the proposal in the platform goes. They’ve proposed a policy that is simultaneously bold enough that it is likely to trigger Republican retaliation, but milquetoast enough that it will do little to counter the GOP’s grip on the federal bench.
If Democrats are ready to risk Republican retaliation, they’re going to need bolder ideas.
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Author: Ian Millhiser
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