Now that they control both houses of Congress and the presidency, Democrats and groups on the Left are suddenly pushing for a large increase in the number of federal judgeships. A letter from dozens of left-wing groups proclaims “a crisis decades in the making” and seeks an increase in judgeships far beyond the Judicial Conference’s recommendations.
Hmmm, if the “crisis” is so serious, why did these groups not seek an expansion of federal judgeships over the past four years?
I’m being flippant, of course. The obvious answer is that expanding federal judgeships is a highly partisan matter, and that’s true for folks on both sides of the partisan divide.
The best way to eliminate the partisanship is to have any expansion of federal judgeships take place at some point in the future—not too near, but also not too distant. I’m pleased to highlight the proposal for a “2030 Commission”—perhaps better named a “Commission on Judicial Reform in 2030”—set forth by law professors Peter S. Menell and Ryan G. Vacca near the end of their long law-review article “Revisiting and Confronting the Federal Judiciary Capacity ‘Crisis’: Charting a Path for Federal Judiciary Reform”:
[T]here are two critical challenges to achieving beneficial judiciary reform: developing a balanced, forward-looking reform package and overcoming the political, institutional, and human impediments to enactment. These two challenges are intertwined, and this relationship adds to the difficulty of achieving reform.
Drawing on John Rawls’ seminal “veil of ignorance” construct, the best chance of breaking the logjam is for Congress to establish a judiciary reform commission tasked with developing a judiciary reform act that would not go into effect until 2030. The “2030 Commission” members would not know the identity or party of the President or of the Senate majority. Furthermore, any federal judges involved in the process likely would be senior or retired by the time any reforms went into effect and thus presumably less concerned about how reform proposals might affect them personally. By delaying implementation, the 2030 Commission members would operate behind a veil of ignorance that would enable them to focus on the best interests of future generations of citizens (including judges and practitioners), while at the same time drawing upon their own experiences….
The 2030 Commission would conduct its study and develop judiciary reform recommendations within two years, allowing Congress to consider and shape a long-range plan well in advance of when the 2030 balance of political power would be known.