Republicans are looking for a win with their new tax-reform bill. But they could get two wins in one: In addition to overhauling the tax system, the bill could fund many new federal judgeships. 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, which the latter accomplished by filibustering President George W. Bush’s judicial nominations and then eliminating the filibuster for lower-court nominees under Barack Obama.
So far, President Trump and the Republican Senate have delivered spectacularly on filling the judgeships that were vacant when President Trump took office. One can tell this from the squeals of pain this past weekend from the New York Times complaining that Trump is taking over the lower federal courts.
The appointment of Justice Neil Gorsuch to the Supreme Court and President Trump’s appointments to the lower federal courts have been superb. But Trump has appointed only eight of 169 federal appeals-court judges, with only a few vacancies left to be filled. This is not even remotely a takeover of the federal courts of appeals. It at most constitutes a pin-prick.
To truly have an effect on the judicial branch, the Republican Congress needs to appropriate funds to increase the size of the lower federal courts. Our suggestion, spelled out more fully in our new paper, would be to boost the total number of judges by roughly 33 percent, as President Jimmy Carter and a Democratic Congress did in the 1970s. If the Republicans increase the size of the lower federal courts today by the same percentage that Jimmy Carter and his Democratic Congress did in the 1970s, there can be no legitimate complaint from present-day Democrats about court-packing.
And as it happens, the judiciary desperately needs more federal judges, because the caseload has grown immensely — by about a third in the district courts and nearly half in the circuit courts — since the last bill creating new judgeships was passed in 1990.
This avalanche deters the parties in civil and criminal cases from going to trial, because it delays the speed at which trials can be conducted and increases the costs associated with trying a case. As a result, 95 percent of all federal civil suits are settled and 95 percent of all criminal cases are plea-bargained. Many federal trial judges can go for a year or two without trying a case. This makes the American Bar Association’s requirement of trial experience impossible for young lawyers to meet because federal trials have been essentially abolished.
The courts of appeals are struggling as well. In most of those twelve circuit courts, 90 percent of all appeals are disposed of with an unpublished opinion written by an anonymous law clerk, quite probably with very little supervision by the three judges to whom the appeal was addressed.
It’s a political win — and meets a legitimate need.
The Republican bill could also take on administrative-law judges. These are career bureaucrats hired by executive agencies to hear the cases those very agencies bring against private individuals and businesses. Litigants can eventually appeal these judges’ decisions to the federal circuit courts, but all the critical fact-finding has been done at that point — by an executive-branch bureaucrat and not, as Article III of the Constitution provides, by a life-tenured judge.
The solution is for the Republican Congress to eliminate funding for the current administrative-law judges and to create about 250 administrative-law trial judges with life tenure who are nominated by the president and confirmed by the Senate. Congress should appropriate funds to create these new judgeships and for the jury trials that ought to occur before them.
The Republican Congress needs to add funding for these new judgeships to the reconciliation bill now pending before it, and President Trump needs to sign that bill. Then President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress. It’s a political win — and meets a legitimate need.