Donald Trump was most effective at getting judicial vacancies filled rapidly. He used The Federalist Society as a sort of outside vendor for choosing judicial nominees, combined with a motivated Senate leader in Mitch McConnell (R-KY), who provided a fast track to confirmation for those candidates. The result: Trump appointed almost the same percentage of the judiciary in four years as Obama/Biden did in eight. Democrats are desperate to blunt the effect of so many conservative judges, and this past week, they publicly initiated their plans.
Unlike President Trump and congressional Republicans, Democrats don’t intend to do so by majority agreement and advance preparation. Instead, they plan to pack the courts at the highest and lowest levels because they can. President Biden played coy about the issue during the campaign but didn’t wait a week in office before watering and feeding the seeds of Supreme Court-packing. Meanwhile, Senate Majority Leader Chuck Schumer (D-NY) and incoming Senate Judiciary Committee Chairman Dick Durbin (D-IL) have started planning to pack the lower courts for good measure. Why not? Trump’s efficiencies in judicial placement were effective all up and down the federal courts.
What About RBG?
“The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary,” read the Politico story on Joe’s first week in office.
What “reforms” might be on offer for the Supreme Court? There can be only one – adding justices. All rules for how the Supreme Court operates are determined by the Constitution itself or Court-made regulations. That’s how it can exist as a co-equal branch. The number of justices is not prescribed in the Constitution, however, and Biden and the Democratic Congress are free to add as many seats as they can pass into law, which would be occupied by Biden choices confirmed by the Democratic Senate. All done by a simple majority. As the late Justice Ruth Bader Ginsburg observed:
“Well, if anything would make the court appear partisan, it would be that – one side saying, when we’re in power, we’re going to enlarge the number of judges, so we will have more people who will vote the way you want them to.”
If the country is lucky, the commission is a Biden fake-out. It’s possibly a sop designed to placate the most progressive part of his base, who are more committed to packing the courts. When the Constitution’s best hope is that those in power are merely faking a damaging existential change to the government for partisan gain, it is a sure sign of trouble.
Not to be outdone by the executive, we learn that Chuck Schumer has his eyes on the rest of the judiciary for expansion. The reports about Schumer and his congressional colleagues’ efforts focus on hopes for a bipartisan agreement on adding lower court judges. Jordain Carney for The Hill writes that Dick Durbin told her: “Interestingly enough, I had a Republican senator who approached me about expanding the number of federal judges in his state so there seems to be some sentiment that there [are] backlogs in the dockets of federal judges.”
Perhaps Democrats see too much resistance to adding Supreme Court justices and think they’ll take the next best thing? Schumer deferred to Biden on SCOTUS court packing – for now. Carney quotes him on Rachel Maddow, saying:
“As for the Supreme Court, that’s the big one, and President Biden has put together this commission to come up with a report in 180 days. We’re going to see what that commission says and go from there.”
The Federalist Society champions judicial candidates who view the free market as a hallmark of liberty and believe the economic impact of legislation and regulations must be given consideration when judging. That Trump successfully populated so much of the judiciary with these candidates will yield dividends for a generation – if Democrats fail at watering down the third branch of government.
Read more from Scott D. Cosenza.