Josh Blackman, an associate professor of law at South Texas College of Law, recently published an op-ed in National Review Online taking issue with our proposal urging congressional Republicans to increase the size of the lower federal courts. Blackman calls it “ill-considered” and says it should be “discarded.” He also, unfairly in our view, calls it a Republican court-packing plan.
We believe our plan is necessary to deal with a caseload crisis in the federal courts, where caseloads have increased greatly since the last judgeship bill was passed in 1990. We also think the plan restores the partisan balance that was disturbed by past Democratic efforts. In 1978, President Jimmy Carter and a Democratic-led Congress passed a judgeship bill that increased the size of the lower federal courts by 33 percent. We propose that Republicans should do the same during this Congress.
Consider that Republicans have controlled the presidency for 28 of the 48 years between the presidential elections of 1968 and 2016 and for 20 of the 36 years between the presidential elections of 1980 and 2016. One would expect, then, that Republican appointees would have at least a simple majority on the federal courts of appeals. Instead, Republican appointees are outnumbered in the vast majority of the twelve regional courts of appeals. As we explain below, this situation is due to Democratic court-packing over the past 52 years.
Blackman claims that the 1978 judgeship bill has had little lasting effect because only three judges appointed under that plan are still serving on the federal bench. But consider: President Carter, pursuant to that law, appointed 15 judges to the U.S. Court of Appeals for the Ninth Circuit. Most of the very liberal judges Carter appointed took senior status during the Clinton administration and were replaced by other very liberal judges. Consequently, the Ninth Circuit has retained a liberal majority ever since the 1978 bill became law.
The Ninth Circuit covers the states of California, Hawaii, Oregon, Washington, Alaska, Idaho, Montana, Nevada, and Arizona. The combined population of these states is more than 65 million. That means that a large number of Americans living in these radically different states have had to live under left-wing federal judges for 39 years. Moreover, Democratic senators have blocked taking action in response to repeated pleas for Congress to split the Ninth Circuit up so that conservative states do not have to live under the rule of ultra-left-wing judges
The viciously partisan way Senate Democrats have behaved regarding judgeships since 1978 has further unbalanced the courts. There’s no need to recount the entire history here, but recall, for example, that when Democrats had a majority in the Senate, they refused to confirm almost all of George W. Bush’s judicial nominees. They launched an unprecedented filibuster of his judicial nominees even though a majority of the Senate was prepared to confirm them. As a result, only a handful of conservatives were appointed to the bench, and most of Bush’s judicial nominees who cleared the 60-vote hurdle created by Senate Democrats were milquetoast conservatives at best. The effect was to move the lower federal courts sharply to the left. In 2013, Senate Democrats then abolished the filibuster of judicial nominees, thereby allowing them to take control of a majority of the D.C. Circuit and of other federal courts of appeals. It is the actions of Senate Democrats over many years that constitute the real court-packing that has occurred on the lower federal courts.
In response, Senate Democrats complain that they were robbed by the Republicans of a Supreme Court appointment for Merrick Garland, who was nominated to the Court after Justice Scalia died in the middle of a presidential-election year. This overlooks the fact that Senate Democrats refused to consider former acting attorney general Peter Keisler’s nomination to the D.C. Circuit for two whole years prior to President Obama’s election. It also overlooks the fact that Senate Democrats wrongly stole a Supreme Court seat from Republicans when they denied confirmation to Robert Bork by a 58-to-42 margin, even though he was among the most well-qualified Supreme Court nominees in American history. The result was the appointment of Justice Anthony Kennedy, which effectively robbed President Reagan of the chance to put another true originalist, like Antonin Scalia, on the Supreme Court.
Republican appointees are outnumbered in the vast majority of the twelve regional courts of appeals, because of Democratic court-packing over the past 52 years.
Blackman calls for bipartisanship in passing judgeship bills while overlooking this recent history and the fact that most such bills in the past have been passed by partisan majorities. The Judiciary Act of 1789; the repeal of the Federalists’ judgeship bill by the Jeffersonians in 1801; and the creation of the new circuit courts of appeals by congressional Republicans in 1891 were all partisan bills. So too was Franklin D. Roosevelt’s bill allowing court-of-appeals judges to retire at full pay at the age of 65, so long as they had served a number of years. (FDR’s bill was an effort to get conservatives to retire at full salary, thereby allowing him to replace them with left-wing judges.) This history teaches us that judgeship bills, like ordinary legislation in Congress, are the work of majorities.
To return to the important question of the caseload crisis: When one of us clerked in the 1980s, unpublished opinions were issued in only about 25 percent of the cases of the courts of appeals. These types of opinions are arguably unconstitutional because they are, in effect, a form of secret law that cannot be cited as precedent in future cases. Today, in most federal courts of appeals, 90 percent of the appeals are disposed of by an unpublished opinion, written by an anonymous law clerk, with very little supervision if any by a judge. The appellants do not even get oral-argument time in most of these appeals. Federal appeals concern such important questions as 1) the legality of the imposition of a death sentence or a sentence to life imprisonment or to imprisonment for 30 years; 2) the future of a family-owned business; 3) police-brutality claims; and 4) the outcome of race- and sex-discrimination lawsuits. This situation is unjust, and Congress ought to act to correct it in the next six months. If Congress can do so in a bipartisan way, that would be great, but, given the partisanship surrounding the health-care bill and the tax bill, it’s unrealistic to think 60 votes could be mustered to correct this problem.
One last point: Administrative-law judges are currently appointed by the administrative agency they hear lawsuits about. As such, they lack meaningful independence. In our proposed judgeship bill, 200 administrative-law judges would be nominated by the president and confirmed by the Senate. This would go a long way toward rendering the administrative state constitutional according to the original public meaning of the Constitution. Blackman is strikingly silent about this aspect of our proposed judgeship bill.
There is a self-evident need to expand the federal courts and reform the process by which administrative-law judges are appointed. Our proposal would accomplish this, and in the process, it would remedy the ideological imbalance on the courts caused by Democratic court-packing.