Obama Should Oppose Court Packing Scheme

Before turning to the 2009 Federal Judgeship Act, we note a rare instance of agreement between the Committee for Justice’s Curt Levey and Nan Aron of the Alliance for Justice. Saturday’s National Journal Magazine reported that

“Regardless of whose seat is being filled, advocates on both ends of the ideological spectrum predict a bruising fight if a [Supreme Court] vacancy occurs next year. ‘It will be a big battle for a number of reasons,’ said Curt Levey … ‘One is just the very fact that it is an election year. Two is that when the president was at the height of his popularity, Republicans were only willing to fight so hard on Sotomayor.’ … Nan Aron, president of the liberal Alliance for Justice, contends that ‘Judging from the way in which Republicans are treating the president's nominees so far, they will mount an all-out battle to defeat whomever is sent to the Senate by the president.’”

Now on to the Judgeship Act (S.1653 & H.R.3662), which is being pushed by Sen. Patrick Leahy and was the subject of recent hearings in his Judiciary Committee. The bill would create more than sixty new federal judgeships, a dozen of them on the U.S. Courts of Appeal, which serve as the final word on most legal issues. Each new judgeship would costs the nation about a million dollars a year in salary, rent, security, clerks, and the like.

In an editorial on Monday, the Wall Street Journal noted the crass partisanship and hypocrisy behind the bill. An earlier version of the bill in the last Congress had bipartisan support because the new judgeships were explicitly delayed until after an intervening presidential election and inauguration, thus favoring neither party. In contrast, the 60-plus new vacancies created by Leahy’s bill and its House equivalent could all be filled immediately by President Obama. The large Democratic majority in the Senate would then rubber stamp virtually all of Obama’s 60-plus picks.

Lest anyone imagine that Sen. Leahy and the Democrats are motivated by a real judge shortage requiring immediate action – rather than by a desire to pack the courts – the Journal points out that President Obama has named only 16 nominees to fill the 94 current vacancies on the federal bench. And even if 94 vacancies were deemed to be a problem, how would creating more vacancies address the problem? Finally, many of the 94 vacancies exist only because Sen. Leahy denied hearings and votes to so many of President Bush’s judicial nominees in the last Congress.

The only fair thing to do is to amend the proposed Judgeship Act to delay the creation of new judgeships until after the next presidential election / inauguration, as in the previous version of the bill. That would not only make the bill’s effects non-partisan, but would also depoliticize the determination of how many new judgeships are needed and where they’re needed. Unfortunately, Chairman Leahy has already announced that he is “unmoved” by requests that the bill be made less partisan and political. Absent a change in Leahy’s position – unlikely given his long history of hyper-partisanship – we agree with the Wall Street Journal that “Republicans should do everything in their power to stop” the bill. On the judges front, there is no more important priority for Senate and House Republicans.

However, we note that the ultimate responsibility for saying no to this partisan bill lies with President Obama, who was elected on a promise to transcend partisanship. The President claims to have tried to keep that promise on a variety of issues, but no such claim regarding the judiciary will be plausible if Obama supports a judgeship bill that allows him to fill every one of the 60-plus new seats on the bench. That’s about as self-serving as Congress voting itself an immediate pay raise, which is forbidden by the 27th Amendment. The President can ensure that he is never asked to sign such a court-packing scheme by signaling immediately to Leahy and House Democrats that he wants a bipartisan judgeship bill.

The last time a president and Congress of the same party got together to create a partisan windfall of new judgeships, Jimmy Carter was President. The result included ten new seats on the Court of Appeals for the Ninth Circuit. With a Democrat-controlled Senate willing to rubber stamp Carter’s judicial picks, the Ninth Circuit took a turn to the far left. It remains there to this day, illustrating a potential for abuse that is sure to be exploited if Leahy’s partisan bill becomes law.

If President Obama is genuinely worried about there being too few judges on the federal bench, he has the opportunity to fill some vacancies in a hurry by nominating attorneys who have already been vetted both privately and publicly and who are guaranteed to get broad bipartisan support and quick confirmation. In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. There’s no reason why Obama shouldn’t seize the opportunity for quick confirmations by duplicating President Bush’s gesture and renominating some of the unconfirmed Bush nominees stonewalled by Sen. Leahy.