Court Packing

Does the Democratic Platform Endorse Court-Packing?

When it comes to the Supreme Court, the answer is clearly "no." Things are less clear when it comes to the lower federal courts.


Cartoon criticizing Franklin D. Roosevelt's 1937 court-packing plan.


The Democratic Party recently published its 2020 platform. One issue of special interest to anyone who cares about the future of the federal courts and judicial review is whether the party would endorse court-packing. For at least two years now, some liberal activists have urged the Party to increase the size of the Supreme Court in order to appoint liberal justices to reverse the current 5-4 conservative majority on the Court, which many on the left believe was created by illegitimate means (most notably the GOP-controlled Senate's refusal to hold hearings on Barack Obama's Supreme Court nominee, Judge Merrick Garland, in 2016). If implemented, such proposals would predictably lead to a cycle of retaliation that would likely undermine  judicial review as an effective check on the other branches of government (see my discussion of these issues here, here, and here).

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).

Before the Democratic Convention, news reports suggested that the Democrats would embrace "structural change"of the federal courts. When it comes to the Supreme Court, they clearly have not done so. Perhaps the Party was influenced by the Court's growing popularity, which would make a confrontation with the justices politically dangerous. Alternatively, they might have been swayed by presidential nominee Joe Biden's own previously stated opposition to court-packing. Either way, the the Democrats have—so far at least—shied away from efforts to pack the Supreme Court.

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."

Who is right? The truth is not easy to discern, but probably lies somewhere in between.

If we take the rationale for the Democratic proposal at face value, it is not court-packing at all. The latter is not simply expanding the number of judges, but doing so for the purpose of changing the ideological balance on the court in question. Otherwise, every increase in the number of judges throughout the history of the United States (of which there have been many) would qualify as "court packing."

The Democratic platform justifies its proposed expansion by citing growing case loads, and also assures us that any increases will be "consistent with recommendations from the Judicial Conference [of the United States]." The Judicial Conference is the policymaking body of the federal judiciary, and includes representatives from the Supreme Court all of the various courts of appeals and district courts. If the Democrats stick to its recommendations, they can argue they are not pursuing a partisan court-packing agenda, but merely following the advice of a politically neutral body, which includes both liberal and conservative judges.

The Judicial Conference, has in fact recommended only a modest expansion of the judiciary, using much the same case-load rationale as that presented by the Democrats. Here is what the Conference says on its website:

The Judicial Conference has recommended that Congress establish five new judgeships in the Ninth Circuit Court of Appeals and 65 new judgeships in 24 district courts across the country. The conference also recommended that eight existing temporary district court judgeships be converted to permanent status.

Since 1990, when the last comprehensive judgeship bill was passed by Congress, case filings in the courts of appeals had grown by 15 percent by the end of 2018, while district court case filings had risen by 39 percent in the same period.

"The effects of caseload increases without increasing the number of judges are profound," [Judge] Miller said in his written testimony. "Increasing caseloads lead to significant delays in the consideration of cases, especially civil cases which may take years to get to trial. … Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and the judicial process."

The full text Judge Miller's recent testimony before the Senate Judiciary Committee is available here. Current law provides for 179 court of appeals judges, and 663 federal district judges (including 10 temporary appointments). The Judicial Conference plan would increase the numbers of the former by less than 3%, and the latter by about 10% (or slightly more than that, if you include the eight temporary judgeships converted to permanent ones).  Moreover, the vast majority of the new judges will be district judges. They have less discretionary authority than appellate judges, and their decisions are not considered binding precedents (though they often do influence later rulings, nonetheless). A massive court-packing revolution this is not.

The modest scale of the proposal is what leads Millhiser to call it "timid" and inadequate. But it is still far from totally insignificant. Appointing five new judges to the US Court of Appeals for the Ninth Circuit would ensure a strong liberal majority on an important appellate court that covers California and numerous other western states. The Ninth Circuit's jurisdiction applies to more people than any other federal regional appellate court.

In addition, only very naive observers are likely to believe that concerns about judicial caseloads and deference to the expertise of the Judicial Conference are the only—or even the most important—motivations for the Democratic proposal. After all, that proposal comes in the same section of the platform where the Party laments the GOP's appointment of numerous conservative judges, and promises to appoint Supreme Court justices who will be committed to liberal results on various key issues within the purview of the courts, including abortion.

In this context, we should remember that past court-packing proposals also often came packaged with rationales emphasizing "neutral" factors such as managing caseloads. The official rationale for Franklin D. Roosevelt's 1937 plan to pack the Supreme Court was the need to ease the workload of elderly Supreme Court justices (thus it was structured to allow the president to appoint one new justice for each current one who had reached the age of 70.5 years but chose not to retire).

The Democratic platform proposal reminds both me and Millhiser of the 2017 plan for Republicans to pack the lower courts proposed by prominent conservative law professor Steve Calabresi and his coauthor Shams Hirji (as Millhiser notes, I strongly opposed the plan at the time). The memo outlining Calabresi-Hirji proposal also offered justifications based on the need to deal with growing case loads (which took up most of the space in their text), though they let the cat out of the bag when they stated that one of their goals is "Undoing President Barack Obama's Judicial Legacy."

Unfortunately, I cannot link to the Calabresi-Hirji article because the the controversy caused by the proposal eventually led the authors to remove the piece from SSRN, and it has never been revised and reposted since then [UPDATE: a copy of the paper is still available here]. But other veterans of the debate over their piece can confirm my recollections of its content.

As Millhiser notes, one key difference between the Democratic platform proposal and the Calabresi-Hirji plan is the much greater scope of the latter. Calabresi and Hirji called for 61 new federal appellate circuit court judges (36% more than the current number), and 200 new district court  judges (almost 30% more than the status quo). They also argued that Congress should replace 158 administrative law judges currently selected by executive branch administrative agencies with standard life-tenured judges appointed by the President and confirmed by the Senate. But this very significant difference in degree is not the same as a difference kind. Moreover, if case loads continue to increase (or perhaps even if they don't), the Democrats could easily say that we actually need more new judges than the Judicial Conference advocates.

If the Democrats go through with their plan, Republicans and others might well (with good reason) assume that court-packing is a large part of the motivation. They might then retaliate in kind as soon as they have the opportunity to do so. When he rejected proposals to pack the Supreme Court, Joe Biden  pointed out that "We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all." The end result would be the neutering of judicial review, as any ruling that seriously impedes one party's policies would predictably be met by  "packing" of the court in question. The same dynamic could occur with federal lower courts.

Millhiser may well be right in this warning:

Republicans are likely to attack any Democratic proposal to increase the size of the federal judiciary as if it were akin to Calabresi-style court-packing.

Once Republicans have convinced themselves that Democrats broke the seal on court-packing, they are likely to find something like Calabresi's proposal much more palatable in the future.

Democrats, in other words, appear to have stumbled into a dangerous middle ground, at least as far as the proposal in the platform goes. They've proposed a policy that is simultaneously bold enough that it is likely to trigger Republican retaliation, but milquetoast enough that it will do little to counter the GOP's grip on the federal bench.

A court-packing war over the lower federal courts might be almost as damaging as a similar conflict over the Supreme Court. As a practical matter, lower courts decide the vast majority of cases. Only a tiny fraction ever reach the Supreme Court (though many that do are unusually important ones). Effective judicial review requires engagement by the lower courts, not just Supreme Court justices. Collectively, the former may actually have more influence than the latter, though any one SCOTUS justice obviously has far greater clout than any one lower court judge.

That said, the relatively limited nature of the Democratic platform proposal does reduce the risk of a court-packing tit for tat relative to either a plan to pack the Supreme Court or a full-blown Democratic version of the Calabresi-Hirji plan.

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.

Of course, if the 2020 election ushers in a lengthy period of Democratic dominance of the presidency and Congress, they will ultimately get to fill all the new judgeships. But in that event, the Democrats will be able to gradually take control over lower federal courts anyway, through the normal process of attrition and replacement.

A staggered approach might be dangerous if the federal courts really were facing a crisis so great that they cannot resolve the cases before them without major immediate reinforcements. But that does not seem to be the case. As prominent conservative court of appeals Judge William Pryor put it in an op ed criticizing the Calabresi-Hirji plan:

If judges were overworked and cutting corners, they would undoubtedly ask Congress for more help beyond filling vacancies and the addition of a modest number of judgeships requested annually. If federal courts were suffering a caseload crisis, there would be nothing attractive about being a federal judge, and judges would be departing in droves. And they're not.

Perhaps federal courts could use some reinforcements. But there is no imminent crisis requiring immediate expansion of the number of lower court judges. Thus, a staggered plan could help alleviate case load pressures, while simultaneously minimizing the risks of court-packing.

I'm not necessarily wedded to the staggered approach. There may be other ways of achieving that same goal. The key, however, is to make sure that any proposal to increase the size of the federal courts really is a nonpartisan plan to address case load issues or other similar problems, not a thinly veiled push for court-packing.

The Democratic platform is unlikely to be the end of the current round of debates over court-packing. If Biden wins the election, he may not follow all of the platform's recommendations. But the text is a good indication of where the party's leaders currently stand. I'm happy that they chose not to endorse packing of the Supreme Court. When it comes to the lower courts, things are more ambiguous. The proposal the party endorsed is relatively modest. But it still creates some risk of escalatory retaliation, if implemented.

Obviously, those who believe court-packing is justified as a means of retaliation for GOP misdeeds, or that judicial review really should be neutered are unlikely to share my concerns. I do not have the space to address these positions in detail here. This post is probably too long already!

But I have done so in earlier writings, such as here, (explaining why court-packing would be a dangerous escalation, not just retaliation in kind),  here (explaining why there is good reason to fear court-packing even if you don't like many of the decisions of the current SCOTUS majority), and here. For those who worry about the potential deterioration of liberal democracy in the US,  the liberal Vox site has a good discussion of court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.

UPDATE: The 2017 Calabresi-Hirji  paper referenced in the post is still available here.

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  1. Why not? It was an affront to the constitution that McConnell didn’t even give Garland a hearing. I don’t care if he confirmed or not but pure obstruction is all they’ve done.

    Let the Dems play by the same dirty rules. Maybe it’ll all burn down quicker. Might be better for all of us anyhow.

    1. What do you mean by “affront to the constitution?” Sure, it was partisan politics writ large, but not illegal. If affronting the constitution offends you in the context of justice nomination and confirmation, I remind you of the Kavanaugh hearings. That was dirty, filthy, abhorrent, partisan politics writ large…but not illegal.

      1. It definitely wasn’t an affront to the Constitution. The Senate could have brought the nomination to the floor and voted it down. So the only thing they didn’t do was hold the hearings before the inevitable rejection. Big deal.

        It was political hardball, and certainly the parties play hardball back and forth on judicial appointments.

        1. Agreed. I see court-packing in the same light. It is constitutional hardball, nothing more.

          The tit-for-tat escalation will eventually destroy the country if it doesn’t stop. But for it to stop before melt-down, someone has to be able to force a compromise.

          Funny how we don’t hear the work “Borking” much anymore.

        2. “It definitely wasn’t an affront to the Constitution. The Senate could have brought the nomination to the floor and voted it down.”

          could’ve, except a majority of Senators would have voted to confirm.

    2. Set it up so that if the party that controls the Senate is the same as the President’s party, the rules work one way, and if they are of different parties the rules work differently.

      If the parties are different, then a failure to schedule a vote functions as a default confirmation. so Mitch doesn’t bother to vote on Obama’s nominee, the nominee gets confirmed. Obstruction doesn’t work, and you have to get 51 Senators to vote no if you want to deny the confirmation.

      On the other hand, if the President’s party controls the Senate, then failing to schedule a vote functions as a default denial of confirmation. So if Mitch doesn’t think he’s got 51 votes in favor of a Trump nominee, he can’t just not vote on it.

      alternatively, you could propose a constitutional amendment that says the Senate will vote to confirm or deny all nominees for office by the third day it’s in session after the nomination is made, or the Senate forfeits all the funding for all the staffers or the Senator’s salary.

      1. perhaps we could just remove 90% of the unconstitutional issues that they are called to review. How many unconstitutional executive departments are there now among the cabinet? 12 – 15?

        Without the ability to distribute favors, the political orientation of the SCOTUS becomes unimportant.

        Apply the above to the budget. Without 4 trillion dollars of other people’s cold hard cash to give away to their friends and family the noise from DC becomes attenuated past the point of discernment.

        1. “Apply the above to the budget. Without 4 trillion dollars of other people’s cold hard cash to give away to their friends and family the noise from DC becomes attenuated past the point of discernment.”

          The real problem is that “friends” and “family” isn’t required. Just spending money in the district is enough. Better still is if you can get that spending and label it as a “tax cut” for somebody.

          1. Note that my criticism applies equally strongly to politicians of every variety. Bringing spending to the state/district is ALWAYS popular. If your inclination is to challenge “nuh-uh, My brand of politicians is always against spending” I call preemptive bullshit. Just see what happens when it’s proposed to close a military base.

  2. Let’s be clear here. If there really WAS an issue that more judges were needed, the true non-partisan way to handle it would be bipartisan.

    The respective parties nominate and confirm judges on a 1:1 basis. IE, the GOP “gets” one judge, the Democrats “get” one judge.

    I’d also recommend breaking up the 9th circuit court into at least 2 different districts.

    1. Somin’s approach to staggering the expansion seems like a better plan than this. Who would pick the judges for the party that didn’t control the Presidency? How does that comport with the appointments clause? Assuming that one party controlled both the Presidency and the Senate, what would stop the Senate from just confirming the President’s picks and not the GOP’s picks?

      1. 1. “Who would pick the judges for the party that didn’t control the Presidency? ”
        -Senate majority leader or minority leader, respectively.

        2. “How does that comport with the appointments clause?”
        -Senate majority leader or senate minority leader, as appropriate would “suggest” that the President appoint the choice they make. The President would then do so, in keeping with the political deal.

        3. Assuming that one party controlled both the Presidency and the Senate, what would stop the Senate from just confirming the President’s picks and not the GOP’s picks?
        -Technically, there’s nothing to stop them from ramming through a partisan expansion bill, and doing that now. However, I can imagine the Senate and House would vote on a bill to expand the judgeships by a very small number (say 6), with the tacit understanding that it would be a 3 and 3 arrangement on the nominations. Assuming that deal was kept, another small expansion bill would be made and done. And so on and so on.

        If one side just says “Screw it, we’re getting out 6 judges and you get nothing,” the other side won’t vote for a new bill and the court of public opinion will play a role.

        1. The advantage of Somin’s approach is that the expansion is gradual but automatic. Anything that relies on going back to Congress multiple times to achieve even a fairly bipartisan goal seems basically doomed to fail in our current environment.

          1. The disadvantage of Somin’s approach is that it opens the door for packing the court with judges all from one party. If I wasn’t in the majority party, I probably wouldn’t do it in today’s climate.

            The advantage of going back to Congress is that it ensures bipartisan behavior, and creates more of it.

            1. The only thing that will ensure bipartisan behavior and create more of it is electing more politicians than will work with the “other guys”. I remember a time when Oregon had that, but one of the parties didn’t want to play that way any more, so they elected more “pure” candidates. This, of course, caused the other side to get frustrated and start refusing to deal with the minority party and now you have politicians who flee the state rather than vote on things the other party brings to the legislative floor. Voting “no” isn’t good enough, they can’t even be in the room, when the voting happens. It’s a ploy, of course, denying a quorum where they can’t vote something down.

    2. ” the true non-partisan way to handle it would be bipartisan.”
      The true non-partisan way to handle it would be non-partisan.

      1. Non-partisan is rarely actually non-partisan. For example, see California’s “non-partisan” Congressional district formation at the beginning of the decade. Typically “nonpartisan” it means one side just hides their partisan motivations better in today’s climate.

        1. In that case, let me revise my prior statement to
          The true non-partisan way to handle it would be non-partisan.

  3. Either way, the the Democrats have—so far at least—shied away from efforts to pack the Supreme Court.

    Well, at least they have learned to stop talking openly about it – – – – – –

    1. Exactly. What a moderate voter would wish to find in the Dem program is a commitment not to pack the courts in general and SCOTUS in particular.

      1. What this moderate voter wants is a commitment to seat qualified candidates

      2. It would be a long document indeed if it specified everything they weren’t going to do.

  4. Oh my, a platform discussion.

    Nothing more worthless in US politics than a party platform.

    1. I don’t agree with you often, but you are 100 percent correct about this.

    2. This may be my only opportunity (ever) to agree with Bob, so I don’t want to pass it up: Sir, you’re right…..

    3. “Nothing more worthless in US politics than a party platform.”

      The part where they tell you what it is they’re going to want to do? You’re saying it’s worthless because they’re lying about what they want to do, or it’s worthless because the politicians will pursue their own goals instead of what the party’s goals are? Or both?

      1. Both, and more.

        1. How convenient for you that this year’s Republicans have chosen not to bother themselves with a platform.

  5. I notice the platform calls for increasing the size of the 9th Circuit by 5 Judges but does not touch one of the Major Problems with the 9th, it’s already unwieldy size. The oft discussed idea of splitting the 9th (with it’s own problems) is not mentioned.

    1. You could split the ninth by carving off California into a separate circuit Cali has about half the population of the entire ninth circuit. the Cali half of the circuit (9A) would move left, and the other half (9B) would move right. The Northwest would still be the northwest, dominated by Portland and Seattle, and the people in Idaho would still be complaining that their federal circuit was too liberal.

      1. I like that idea.

  6. Of course, the other way to reduce caseload is to reduce the number and scope of laws and crimes.

    Loser-pays would have a similarly salutary effect on the civil caseload.

    1. “Loser-pays would have a similarly salutary effect on the civil caseload.”

      If you just want to cut caseload, and don’t care about whether people have valid claims, you could just jack up the filing fees. $100,000 if you want to file a federal lawsuit should cut down the caseload pretty low.

  7. Is Randy Barnett still romping around in that silly, unconvincing libertarian drag, or has he instead publicly embraced the Republican Party and current right-wingery?

    1. His Twitter feed disposes of any confusion on that score.

  8. “If implemented, such proposals would predictably lead to a cycle of retaliation…”

    As I’ve pointed out before, there’s an obvious solution to that: Don’t let the other party ever regain power! It is no accident that the same people advocating Court packing are also advocating party entrenchment measures, such as adding new states, mandating gerrymandering, political censorship…

    Having a rubber stamp Court would make such actions much more likely to survive challenges.

    1. Mandating gerrymandering? You got a cite? (Or is this some upside-down world thing where if a state adopts non-partisan redistricting that you get to call it gerrymandering despite it being the opposite of that?)

      1. No, it’s the rightside up thing where Democrats declare any map not deliberately designed to help them to be ‘gerrymandering’, so that the only way to not to be found guilty of gerrymandering IS to be guilty.

        Rather like the way Democrats have declared that the only way not to be a racist is to racially discriminate, with color blind behavior being proof of racism.

        1. It’s math, Brett. They have metrics about gerrymandering.

          Either that or actual letters saying you’re trying to target and screw black people in your state.

          Though you may at this point think math has gotten taken over by covert leftists.

          1. While there are researchers with metrics about gerrymandering, there is no consensus even among the researchers and much less across the general public and which metrics actually work. Some of the proposed metrics were laughable. Others could be great – depending on what you think is the appropriate goal for anti-gerrymandering.

            The point is that we first have to reach consensus on what the proper goal is before we can even think about defining the metrics that will show how close or far we are from that goal.

            1. “there is no consensus even among the researchers and much less across the general public and which metrics actually work.”

              It’s math. Math doesn’t depend on consensus to select a correct answer.

          2. Yes, there are metrics about gerrymandering: Population equality, and compactness. Maybe respecting physical boundaries, if doing so doesn’t grossly violate compactness. And that’s it. The one thing you absolutely never take into account when determining if gerrymandering is taking place?

            How people vote.

            ‘Gerrymandering’, in the Democratic perversion, has metrics, too: How well the Democratic party does. And that’s it. Compactness and equal population can go to hell if respecting them doesn’t help the Democratic party.

            In order to avoid ‘gerrymandering’ in the Democratic lexicon, you have to commit it in the ordinary meaning of the word.

            1. Maybe just make it less obvious? Stop rushing to redraw the maps as soon as you have enough votes to do it?

    2. “As I’ve pointed out before, there’s an obvious solution to that: Don’t let the other party ever regain power!”

      That’s usually the plan! But party hardliners lose the habit of designing their choices of how to use power to appeal to a majority of voters to catering to their base, and get voted back out.
      As a non-partisan, I generally object when a party places the good of the party ahead of the good of the country. Both parties have been guilty of doing this, of course, but the R’s are FAR more blatant about it.

      1. I think in 2016 the Democrats were largely freed of their conviction that they could guarantee Democratic hegemony by simply having policies people liked. The same figures on the left who are advocating Court packing, are also advocating entrenchment measures designed to make sure the Democratic party comes out on top even if it’s policies don’t have wide appeal to today’s electorate.

        Just naturalizing all illegal aliens alone would probably be enough to guarantee a generation of Democratic dominance. And Biden has promised to do this by executive order even if Congress doesn’t act.

        1. Your premise only works if there are more illegal immigrants in this country than birthright citizens. I don’t think the problem ever got quite to that level.

      2. “As I’ve pointed out before, there’s an obvious solution to that: Don’t let the other party ever regain power!”

        If accepting this principle causes you to adopt widespread voter suppression tactics, you’ve already lost.

    3. ” As I’ve pointed out before, there’s an obvious solution to that: Don’t let the other party ever regain power! ”

      Unless the Republicans ditch the old-timey intolerance and belligerent, superstition-laced ignorance, their prospects in national elections seem scant.

      I expect them to continue to ride the bigotry-and-backwardness platform until not even voter suppression, gerrymandering, and our system’s structural amplification of backwater votes can keep them within eyesight of Democrats on Election Day.

      What are the chances Republicans can regain electoral competitiveness? They’re already losers in national votes; they are being painted into increasingly desolate geographic corners; and our electorate becomes less hospitable to them every day as old Republicans are replaced by younger, better Americans in our electorate.

  9. If the federal caseload is too burdensome for federal judges than perhaps instead of increasing the number of judges, we should look at steps to reduce the number of federal cases. According to United States Sentencing Commission, over 28 percent of federal criminal cases in 2018 were for drug cases. If the federal courts are overworked or judges are concerned that their caseload is so high that it’s unduly burdening defendants, then ending the Drug War (and with it over a fourth of all criminal prosecutions) seems like a pretty good step. If States want to criminalize drugs, then they’re free to do so – and pay for the courts to handle the drug cases with their own state tax dollars.

  10. Trojan horses to not identify themselves as such.

    Democrats want to decriminalize drugs and let non violent offenders out of jail (for the record i support that)- reducing caseload. So the only real reason to add judges is to pack the courts.

    To be fair, Republicans want to do it as well. But this was not about the Republicans platform.

    1. “Democrats want to decriminalize drugs”

      More accurate to say Democrats want to decriminalize A drug. They’re with the people on that one. Even a lot of people who don’ t want to use that particular drug don’t see the wisdom of criminally charging the people who do.
      Maybe split it down the middle, and stop locking them up, but just disqualify them from receiving public assistance if they can’t support themselves.
      Keeping it illegal functions as a price support for the illegal suppliers, who are apparently not dissuaded from being illegal suppliers by the substantial criminal penalties currently enacted.

  11. I propose this logic:
    If the D’s rush out to establish a large number of new district court judgeships, it’s partisan.

    Unless, they also expand the number of courtrooms, and add staffing to operate them.
    Ideally, they’ll also expand the number of people who can hear immigration deportation cases, which has been locked at a clearly inadequate level for decades.

  12. When you are a hammer, everything is a nail.

    Judges believe they are overworked…only because they take the cases. Much of this “judicial review” should be handled legislatively.

    1. This is the position you take if you believe your side will be better able to bully the legislature than the courts.

    2. “Judges believe they are overworked…only because they take the cases.”

      Exactly 9 out of all the federal judges there are get to vote about taking cases, and thus have an option to not “take the cases”.

  13. GOP Senate needs to offer publicly to pass the Democrats court expansion plan immediately, assuming the Democrats still think it’s a good idea at that point… at the very least would expose if it’s a partisan power ploy, or actual concern for expansion.

    1. Two problems… 1) Mitch’s natural inclination is to dig in his heels if he’s asked to do anything other than cut taxes for rich people, and 2) there might not be a GOP Senate next year, if the D’s convince the people they should be running things in general.

      1. 1. Hardly.
        2. “immediately” would be before “next year”.

        1. #1 effectively precludes “immediately” from being “before next year”.

  14. Why is expanding the number of judges and then selecting them for the usual reasons different from selecting t hem for the usual reasons? If ideological choices are bad when expanding a the number of judges, why is ideological selection okay when replacing judges?

    1. It’s not that one is theoretically good but the other theoretically bad – it’s that the current bad is “balanced”. A sudden increase creates too much incentive to abuse the system in a way that will disrupt the balance.

    2. ” why is ideological selection okay when replacing judges?”

      It isn’t, but people usually only talk about their complaint about it when they aren’t the ones replacing judges.

  15. As to SCOTUS, they’ll get around to it as the Ancient Athenian Greeks did, inventors and founders of democracy. Read Mogens Herman Hansen * The Athenian Democracy in the Age of Demosthenes* (1991 Blackwell). They tried everything to save their democracy, including packing the court, which in the end was comprised of all citizens.

  16. Ideological selection is a proper exercise of political power within the limits of tradition, maybe something akin to stare decesis. Expanding the court is a slippery slope, as above, there is no objective limit.

  17. Gosh, that always seems to be the argument, doesn’t it? Democrats should abide by norms, because only then will Republicans have a reason to do so. But then Republicans have proven that they won’t abide by the norms, so they can just flout them at will!

    You can warn about some tit-for-tat all you like, but the Republicans have already gone above and beyond in demonstrating that they will dispense with any norm or practice the micro-second it becomes inconvenient to them. This argument is no longer persuasive.

    As things stand, the Circuits skew too activist-conservative as it is – the Fifth with their ACA invalidation, the Eighth with their perverse abortion holding, Rao and her embrace of unprincipled embrace of unlimited executive authority over in the DC Circuit, etc. – and it’s well past time for some proper rebalancing.

    1. “Gosh, that always seems to be the argument, doesn’t it? Democrats should abide by norms, because only then will Republicans have a reason to do so. But then Republicans have proven that they won’t abide by the norms, so they can just flout them at will!

      You can warn about some tit-for-tat all you like, but the Republicans have already gone above and beyond in demonstrating that they will dispense with any norm or practice the micro-second it becomes inconvenient to them. This argument is no longer persuasive. ”

      At some point, SOMEBODY has to be the grownup, and the ones that aren’t won’t get my vote(s).

  18. If you use the term “Court Packing” in your headline, you’ve already indicated to the reader that you’ve made a value judgment on the issue, and that it’s “bad.” Why even bother reading the actual article?

    Maybe try writing a piece without that term, and instead talk about whether Democrats want to increase the size of the Supreme Court, or the federal judiciary. Although I get that this may not be as catchy for your target audience.

  19. Expanding the number of judges is too expensive. Simply strip the courts of jurisdiction over cases.

    1. “Simply strip the courts of jurisdiction over cases. ”

      You’ll need a constitutional amendment to strip jurisdiction entirely away from the courts.

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