Law & the Courts

The Corner

It Wouldn’t Be ‘Court-Packing’ for Republicans to Expand the Federal Courts

Linda Greenhouse, writing in the New York Times, and Ron Klain, writing in the Washington Post, have criticized our proposal to create new federal judgeships by calling it a court-packing plan. Nothing could be further from the truth.

In fact, it is a court-unpacking plan. It counteracts Democratic court-packing under President Carter and a Democratic Congress in 1978, which increased the size of the federal courts by 33 percent; and it counteracts the partisan effects on the judiciary of Senator Chuck Schumer’s shameful filibustering of lower-court federal judges under the younger President Bush and his abolition of the filibuster of lower-court federal judges under President Obama.

Republicans will have controlled the presidency for 32 of the 52 years between 1969 and 2021. By all rights, Republicans ought to have a three-fifths majority on all the federal courts of appeals. Instead, there is a Democratic majority on almost all of those courts. This is the result of the Carter judgeship bill plus Senator Schumer’s shameful behavior in filibustering Bush’s lower-court judges and then abolishing the filibuster for Obama’s lower-court judges.

Our proposal simply would restore the judiciary to what would have been the status quo but for Democratic court-packing. It also addresses the fact that 90 percent of appeals in most circuit courts are now disposed of in memorandum opinions, written by law clerks, and with no allowance for a hearing. Countless former law clerks have told us that cases are now being disposed of in the courts of appeals by law clerks acting with essentially no judicial supervision.

This is a national scandal of epic proportions, which Congress should and could address by increasing the size of the federal courts of appeals and district courts by 33 percent, as Jimmy Carter and a Democratic Congress did in 1978. If what Carter and the Democrats did in 1978 was permissible, then what we propose is permissible as well.

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