On The Volokh Conspiracy, Professor Ilya Somin analyzes the Democratic proposal for growing the federal judiciary to handle the growing caseload:
The good news about the Democratic platform is that it does not endorse any plan to pack the Supreme Court. That includes not only straightforward increases in the number of justices, but also such workarounds as “rotation” of justices (advocated by Bernie Sanders during the Democratic primaries). …
Things are less clear when it comes to the lower federal courts. Here, the Democratic Platform says the following:
Since 1990, the United States has grown by one-third, the number of cases in federal district courts has increased by 38 percent, federal circuit court filings have risen by 40 percent, and federal cases involving a felony defendant are up 60 percent, but we have not expanded the federal judiciary to reflect this reality in nearly 30 years. Democrats will commit to creating new federal district and circuit judgeships consistent with recommendations from the Judicial Conference.
Conservative activist Carrie Severino and my co-blogger Randy Barnett denounce this as court-packing. By contrast, prominent left-wing legal commentator Ian Millheiser sees it as a “timid” plan that “will do little to counter the GOP’s grip on the federal bench.” …
If the Democrats really are serious about limiting themselves to politically neutral adjustments to deal with rising case loads, they can address that problem in ways that more clearly avoid court-packing. One would be to institute the new judgeships on a staggered schedule over time. For example, one-third of the new judgeships recommended by the Judicial Conference could be instituted immediately (say in 2021 or 2022), one-third in 2025 (after an intervening presidential election), and one-third in 2027 (after an additional intervening congressional election). That would ensure that many of the new judgeships will take effect only at a time when we cannot currently predict who will be in power.
I think this would actually be counterproductive. Imagine each Presidential election cycle, where both sides know that a victory let’s them appoint a pack of new judges. If the Republicans continue to be single issue voters who make the judiciary their ticket, well, it’ll just make for frenzied election seasons.
I think the Democrats should instead take the high road. Pass the necessary legislation, with or without Republican support, and then nominate and confirm – or not – quality judges.
Not ideologically preferred judges.
And get their qualifications out there for Republicans to chew on. When the predictably hysterical right wing commentators lose their minds and label them all socialists, point out that they’re not. As part of the overall campaign strategy, put out commercials comparing the pundits’ hysteria with the actual facts of the judges.
Let the hysteria strangle itself.
And face it: a percentage of the population will stubbornly close off its brain to rational argument, to the idea of chasing down facts, in preference to believing their favorite opinion-leader, whether their name is Coulter, Hannity, or Limbaugh. You can’t win them, so don’t try.
But for those are doubtful, these commercials may be persuasive.
