In case your head was turned by Professor Calabresi’s arguments about not having enough Republican judges and the Democrats have too much influence on the judiciary, you should take a look at Asher Steinberg’s analysis on The Narrowest Grounds:
I don’t know if Calabresi seriously believes that we should expect 60% of active judges on every circuit to have been appointed by Republican presidents because Republican Presidents will have held the White House for 60% of the time between 1969 and 2021, or actually thinks that there’s any Carter “court-packing” left to unpack. Probably the more charitable assumption is that Calabresi understands the current composition of the courts isn’t a function of Carter and Schumer/Reid’s “court packing,” and that he is merely attempting to provide a thin veil of spin to politicians who might support his plan.
However, supposing that Calabresi means what he says seriously, the reason Democratic appointees control the circuit courts in spite of Republican control of the White House for three-fifths of the 1969–2021 period is not anything that Carter or even Schumer and Reid did, but death and senior status. The lifespan of the average circuit-court judge is simply too short, the temptation of senior status too great, and the age at which circuit-court judges are appointed too high, for Republican control of the White House through much of the ’70s, or even Republican control of the White House through all of the ’80s, to have much effect on the composition of the circuit courts in 2017.
To begin with, it is nonsense to say that we should expect anything about the composition of the courts because of Republican control of the White House in 2018, 2019, and 2020, which, it should hardly need saying, haven’t happened yet. When those years do pass, we should expect the courts to become somewhat more Republican, but they have to pass first. So the relevant years, taking Calabresi’s start date of 1969 as a given for a moment, are 1969 through 2017, and Republicans have controlled the White House for twenty-nine of those forty-nine years. To be sure, that’s still 59%. But then we come to the matter of Calabresi’s start date.
Well, I shan’t grab anything more from Asher. Either the professor is dissembling mightily, or he doesn’t understand that as time passes, the influence of each President will fade due to simple biology – as Asher basically says. For example, Asher has done the footwork to ascertain that all of Nixon’s appointees – and there was a lot of them – are dead or in retirement (or senior status, which I take to be much like retirement).
Basically, Asher puts cleats on and stomps Calabresi into the ground.
