Conservatives have a new court-packing plan, and in the spirit of the holiday, it’s a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts.
If conservatives get their way, President Donald Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same.
In the final two years of Obama’s presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Because of GOP obstruction, “the number of (judicial) vacancies … on the table when (Trump) was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society.
Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure, he nominated 20 judges to the federal trial and appellate courts. In Trump’s, he named 58. Senate Republicans are racing these nominees through confirmation. Breaking a 100-year-old tradition, they eliminated the “blue slip” rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, one in eight cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050.
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But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives.
Enter a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled “Undoing President Barack Obama’s Judicial Legacy”), Calabresi proposes to pack the federal courts with a “minimum” of 260 — and possibly as many as 447 — newly-created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent.
Never mind that Republicans saw no urgency in filling judicial vacancies while Obama was president. Never mind that they ignored pleas from conservative Chief Justice John Roberts to fill positions in courts facing “judicial emergencies.” Now, conservatives want a 30 to 50 percent increase in the number of federal judgeships, filled by Trump. And they have a clear idea of who should fill this massive number of new posts: “President Trump and the Republican Senate will need to fill all of these new judgeships in 2018, before the next session of Congress.”
Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump’s nominees to date — more white and more male than any president’s in nearly 30 years — would roll back decades of progress in judicial diversity.
But even that isn’t enough. Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency and Food and Drug Administration,and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life.
These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi’s replacement corps would all be picked in a single year, by a single man: Donald Trump.
And if this breathtaking transformation of our federal judicial system isn’t jarring enough, Calabresi has one final treat: a proposal that Congress do all of this in the tax-cut bill that Congress is trying to pass before it leaves for the holidays.
Progressives need to mount a more cohesive and effective plan to slow down the Trump train of judicial transformation. Otherwise, we’ll have a court-packing turducken for Thanksgiving, and a revolutionary rollback in rights and regulation for Christmas.
Ronald A. Klain was senior White House aide to Presidents Barack Obama and Bill Clinton.