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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
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Sanford Levinson slevinson at law.utexas.edu
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Deborah Pearlstein dpearlst at yu.edu
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Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Steven Calabresi dreams of judges-- and more judges-- and even more judges!
As David Super notes in the previous post, Steven Calabresi, along with his student Shams Hirji, has recently proposed that Congressional Republicans vastly expand the lower federal judiciary to wipe out the baleful effects of Barack Obama's previous judicial appointments and ensure conservative Republican majorities in every federal circuit. Calabresi also argues for replacing Administrative Law Judges with Article III judges appointed by Republicans, the better to oversee the Leviathan of the administrative state, and "restore the separation of powers and rule of law to agency adjudications." But the most important goal of the expansion of the judiciary by Republicans, Calabresi forthrightly explains, is "undoing the judicial legacy of President Barack Obama."
Richard Primus, also of this blog, has written a fascinating essay about the proposal on the Harvard Law Review's new blog. He concludes that Calabresi's proposal, if enacted, would mark a significant shift in political conventions. It would take us back to unhappy periods in the 19th century when the party in power tried to pack the judiciary because it regarded the opposition party as a threat to the nation-- "an America," Primus writes, "in which political parties often saw each other not as legitimate rivals but as threats to the Republic—and, not coincidentally, an America on the road to civil war, or cleaning up after one."
As noted below, I think that there is little chance that the Calabresi's proposal to add hundreds and hundreds of federal judges will actually be enacted. Instead, I think that we should consider Calabresi's memo for what it is-- a dream of a better world. Sigmund Freud famously argued that dreams were wish fulfillments that spoke to a subject's predicaments, anxieties, and concerns. What does this particular dream tell us about the predicaments, anxieties, and concerns of the conservative movement and the contemporary Republican Party?
Calabresi's memo reflects two contrasting phenomena in American politics. The first is that formally the Republican Party controls all three branches of the federal government, as well as most state governments. It has never seemed more powerful. The second phenomenon is that, despite this, the Reagan regime that has dominated American politics since the 1980s is gradually nearing its end. The Republican coalition, now led by President Donald Trump, is riven by acrimony and civil warfare. The national Republican Party seems increasingly weak, dysfunctional, and corrupt, even as it controls every lever of the national government!
Indeed, the Republican Party turned to Donald Trump in 2016 precisely because the regime's national coalition is decaying. Trump is both a symptom of decay and an agent of decay. In Stephen Skowronek's terms, Trump is a disjunctive president, brought on board to rejuvenate a dying coalition but who actually furthers its unraveling.
This profound weakness is why, even with complete control of the federal government, the party has had more trouble than it should in passing legislation.
Of course, nobody knows when the Reagan regime will actually end. Democrats did not know that the New Deal/Civil Rights Regime would end in 1980; nor did Republicans know that their regime would end in 1932; nor did Jacksonians know that their regime would
end in 1860. Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult. When people complain that Trump has done little in his first year in office, what they really should be saying is that Congressional Republicans have fought among themselves too much to do much of anything. (But we shall see about taxes-- if Republicans can't pass a tax cut, they have no business being a party.)
The members of the coalition, divided as they are, can still agree on a few things, and they seek to carry out what they still have in common. In the present circumstances, there are two basic points of agreement. The first is to constrict the electorate
so that Republicans can maintain hold of political power for as long as possible. The second is to stock the judiciary with political allies, because "winter is coming."
Despite Senator McConnell's valiant efforts, however, there is almost no chance that Calabresi's proposal will be put into practice. As David Super has explained, the proposal won't survive the tests for reconciliation, and so it will need 60 votes in the Senate.
Even so, Calabresi's proposal
is the kind of intellectual fantasy that reflects the spirit of the times: First, it tells us that we (Republicans) need to stock the courts with as many judges as possible as soon as we can. We need to preserve and extend our vision of the Constitution. Second, it suggests that the Democratic party and political liberals pose a danger to our constitutional system and simply cannot be trusted with control of the government--and especially not the judiciary. This may sound incredible to those liberals and Democrats who do not understand themselves
to be an ongoing threat to the Republic, but this attitude is one effect of the conservative movement's very successful messaging campaign over many decades, and the country's bitter polarization. (These two things, of course, are related.)
Donald Trump well understands that he leads a fractious party, and he also knows that he needs to find ways to hold it together under his leadership. One of Trump's most important decisions was to delegate judicial selection to people with strong connections to the Federalist Society, an elite legal organization. Doing so had multiple advantages. First, it allowed him to throw his support behind a policy about which most of the party faithful could agree, even when they were fighting about everything else, and were deeply suspicious of Trump himself. Second, doing so allowed Trump to mollify the conservative movement's intellectuals and its legal elites. In
general, conservative legal elites distrust Trump and many of them were never-Trumpers. But as long as Trump offers legal elites control over judicial selection, elites have strong reasons to support the Administration and the Republican
Party. The Federalist Society is full of people who have very deep reservations about Trump. But he is giving them what they most desire-- judicial appointments of people who share their jurisprudential views. Calabresi's memo reflects this desire: it is a fantasy dream about being
about being able to get more and more--and more--of the same.
I understand that many people are very worked up about this memo. But I see things differently. As I have been arguing for a very long time, I don't think that the cultural context foreshadows civil war, or the end of the Republic, or a slide into autocracy or totalitarianism. Rather, I think that this proposal--and, more generally, Republicans' willingness to play hardball where the federal judiciary is concerned--is just another piece of evidence that a dying political coalition is doing everything it can think of to hold onto power and impose its will on the nation as it slowly falls apart. It is evidence that we are
in the midst of a very grueling and unhappy transition to a new political regime that will succeed the now exhausted Reagan regime. My guess is that the Democratic party is going to be the dominant party in this new regime, although the Democrats had better
get their act together if they want to take advantage of an opportunity that comes around very rarely in American history. If they do, that might well set up a conflict between a Republican-controlled judiciary and a Democratic-controlled national politics,
as we saw in the 1930s. Nobody knows the future, but I would bet that Republican hysteria about the judiciary is an additional sign of Republican political weakness. Of course weakness does not lead to loss of power unless the Democrats make something of it.