In November of 2017, Federalist Society Chairman Steven G. Calabresi authored an editorial in the National Review calling for the expansion of the federal district and appellate courts by 33 percent. His reasoning, throughout the article, seamlessly alternates between a concern over the increasing caseload taken on by the judiciary and Calabresi’s opposition to the current makeup of the courts. Specifically, he states “not only would this address a genuine crisis in the judicial branch, but it would give President Trump a chance to undo Chuck Schumer’s packing of the lower federal courts.”
We do have a crisis in the federal judiciary. The last bill to expand the federal judiciary was passed in 1990, under George H. W. Bush. In the three decades since, our population, and the accompanying federal caseload, has grown substantially. This crisis has been felt throughout the judiciary, but especially in the 9th circuit. Its wide geographic area, expanding population, and expanding caseload, along with its ideological lean, has made it a specific target of many who would prefer to see it split into more circuits. The 9th circuit currently has 29 judges: nearly double that of the second largest circuit—the 5th circuit—which currently has 17 judges. The 9th circuit also covers nearly 20% of the US population. The necessity of addressing both of the issues does not, however, justify the use of a partisan court packing scheme to do so.
Throughout our history as a nation, the courts have withstood an ebb and flow over the partisanship of their appointments. Whether it be John Adams’s midnight judges, FDR’s attempts to pack the courts, or the recently escalating partisan obstruction of judicial nominees, the goal of maintaining an unbiased, apolitical branch of government selected by clearly political actors has long been a delicate balancing act. From the ending of the filibuster, to dishonest smears, to the destruction of the blue slip standard, judicial confirmations are quickly spiraling to a point where vacancies will remain open for nearly a decade, waiting for the Senate and Presidency to be controlled by the same party.
There is, however, a way to fix this. As Calabresi has rightfully observed, there has been a growing caseload since the last judicial expansion in 1990, and this has led to an overworked and backed up judicial system. The way to fix this is to add more judges, but this must be done in a way that protects against partisan, political confirmations, instead of outright encouraging them as Calabresi seems to. This can be done in a way that restores public faith in the courts, elicits good-faith bipartisanship, and addresses a severe deficit in the ability of the courts to fulfill their duties.
The Congress should pass a bill expanding the judiciary, but should require in that same bill, an inseverable clause mandating that the first round of judges appointed to these new seats be confirmed by no less than two thirds of the Senate. This threshold is a supermajority so high that it is virtually impossible it can be met without bipartisan support for a nominee. One party has not controlled two thirds of the Senate in the past 50 years, and if one party were to reach such a high threshold, it is likely that many of their Senators would be more towards the center, representing states which traditionally vote for the other party, and therefore under political pressure to not act as a partisan rubber stamp.
This high threshold would also result in a more thorough and extensive process for nominees to these newly created seats. As the President would be forced to consult with Senators of the opposing party, and compromise to get more judges through, it would be impossible to confirm all of these nominees within the next two years. This creates the distinct possibility that the Presidency and the Senate could switch parties before these new seats were all filled, but the confirmation requirements would still be as stringent. Such a plan could not possibly be viewed as court packing when there is no assurance that there would be a Republican President and Senate for their entire time period.
Simultaneously, this threshold is not so high that every nominee would be rejected. Of President Trump’s 37 confirmed nominees to circuit courts of appeals, 10 have been confirmed by at least two thirds of all voting members. This includes Kevin Newsom, who has been on President Trump’s shortlist for potential Supreme Court nominees. Such a high threshold would be, in effect, a reinstatement of both the filibuster and blue slip process, but this time as law, instead of as a rule which may be easily removed.
Calabresi asserts that the effects of the 1978 judicial expansion omnibus are still being felt today, even with those judges being gone, because they were replaced by other liberals. Even if this is true, the solution to the strength of liberal activists is not to pack the courts in favor of Republicans, but rather to dilute their power with more bipartisan picks. In doing so, we can protect against a retaliatory cycle of court packing every time the Presidency and Senate switches hands. This plan could also restore public faith in the integrity of the federal judiciary as a neutral interpreter of law, which has been eroded as a result of partisan fights over the Supreme Court.
The overwhelming caseload of the courts is an issue that must be addressed through the addition of more federal judges. But this expansion must be done in a nonpartisan, sustainable manner that will not accelerate, but instead slow the “race to the jurisprudential bottom” as Professor Blackman put it. Calls for Republican court packing schemes should be soundly rejected, but a fear of court packing should not discourage us from addressing these readily apparent deficits in the judiciary.