Monday, November 27, 2017

Judicial Appointments After Judge Robert H. Bork

Guest Blogger

Steven G. Calabresi and Shams Hirji

Professor Richard Primus, writing for the Harvard Law Review Blog, claims that our proposed judgeship bill violates past practice and norms of conventional behavior.  Both claims are false.

First, we explicitly say that although the caseload numbers would justify increasing the size of the judiciary two or three fold, all that we propose doing is increasing the size of the federal courts of appeals and district courts by the same 33% number that Jimmy Carter and a Democratic Congress used in 1978.  Our proposal is guided by and is limited to the Carter precedent as to the number of new judgeships created.  We would not create anymore, and we would not create any less.  It is true that unlike the Carter Bill our Bill would allocate new judgeships evenly across all the courts of appeals depending on caseload increases since the last judgeship bill was passed in 1991.  We would not concentrate most of the new judgeships in the Ninth and Fifth Circuit as Carter for whatever reason did.

Second, there are sound policy reasons for increasing the size of the federal courts.  In most circuit courts of appeals, 90% of the appeals are disposed of by anonymous 26-year old law clerks with very little judicial supervision.  The opinions that result cannot be cited as precedent in future case and are a form of second-class justice.  Judge Richard Arnold a Democrat thought correctly that Memorandum Opinions were unconstitutional, and he was right.  Federal judges do not have the power to issue opinions, which cannot be cited as precedent and which are a form of secret law.   We are quite surprised that Professor Primus is not more concerned about Memorandum Opinions.

We are also surprised that he is unconcerned that rocketing caseloads are making trials a vanishing event in the federal district courts.  Ninety-five percent of all federal civil suits are now settled, and ninety-five percent of all criminal suits are plea-bargained.  It is not uncommon for federal district court judges to go for more than a year without trying a case.  This means young lawyers often get no trial experience, which makes the ABA’s insistence on trial experience to be a district judge positively archaic.

Finally, we are astonished that Professor Primus is unconcerned that federal Administrative Law judges in the agencies we list in our paper do not have life tenure, are appointed by the very agency’s whose lawsuits they hear, and share a building with law enforcement and rulemaking personnel all of who rub shoulders in the cafeteria.   This is a separation of powers nightmare, which we would cure by giving life tenure to newly created Administrative Law judges who would be nominated by the President and confirmed by the Senate.

Professor Primus says our proposal would change the little “c” constitution by politicizing judicial selection in some new and radical way.  This claim is more than a little absurd coming after:  1) the unprecedented treatment given to Judge Robert H. Bork by Senate Democrats in 1987 when Bork was nominated to the Supreme Court; 2) the unprecedented filibustering of President George W. Bush’s judicial nominees to the lower federal courts, which nominees were supported by a majority of the Senate, by then-Senate Minority Leader Harry Reid; and 3) Senator Reid’s decision in 2013 to abolish the filibuster of lower federal court judges nominated by President Barack Obama.

The bottom line is that the Republican Party won the presidency for 32 out of the 52 years between 1969 and 2021 and so one would expect that about three-fifths of all federal court of appeals judges would be appointed by Republican presidents.   The fact this is not the case is evidence of the court packing Jimmy Carter and Chuck Schumer have been engaged in.

Voters who told pollsters in 2016 that they cared more about judicial selection broke heavily in favor of Donald Trump over Hillary Clinton.  Donald Trump had a popular mandate to pick Justice Scalia’s successor and to pick a whole lot of other lower court judges like him.  Make no mistake about it Professor Primus.  The American people are against you on judicial selection.

Steven G. Calabresi is Clayton J. and Henry R. Barber Professor, Northwestern Pritzker School of Law. You can reach him by e-mail at s-calabresi at Shams Hirji is a recent graduate of Northwestern Pritzker School of Law.

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