Check out the website: https://lenspoliticalnotes.com :  Political Note #326 House Members who could elect a President, Lens Letters #32 What should Democrats do about the Supreme Court

Len’s Letters #33 What should Democrats do about the Federal Courts?

Some Democrats have urged that newly elected president, Joe Biden expand the size of the US Supreme Court.  In response to those Democrats and to pressure from Republicans hoping to create a campaign talking point, Joe Biden announced he would appoint a Commission to consider reforms in the US Judiciary.  The Commission is to report on its findings in 180 days.  This Letter suggests a direction for Reforms of the Circuit Courts of Appeals and the Federal District Courts.  Democrats should follow the Mitch McConnell Standard for District Courts and a Super Mitch McConnell Standard for the  Circuit Courts of Appeals.

Republicans, led by Mitch McConnell have been ruthless in their efforts to fill the US Supreme Court and the Federal Courts with judges who reflect their world view.  The Federalist Society provides an organizational basis for their effort.  The Federalist Society says it seeks “a legal system [that places] a priority on individual liberty, traditional values, and the rule of law. …To achieve these goals the Society has created a conservative and libertarian network that extends to all levels of the community.”

The practical meaning of their goal has been to create a court that would end FDR’s  initial regulations of business and the regulations that have followed, FDR’s creation of a social safety net and the efforts that have followed, more recent efforts to end racial and sexual discrimination in various aspects of life ranging from discrimination regarding the personal like marriage to the workplace for gays and for the transgendered, and efforts to create a more equal world for women  including assuring the right of women to choose an abortion.  More recently, followers of the Federalist Society have promoted a troubling vision of ending religious discrimination by permitting the imposition of religious standards on those who do not share that religion or those standards.

The instrument for achieving these goals has been Senate Majority Leader Mitch McConnell and the Republican Senate.  They have made it a priority to encourage President Donald Trump to nominate judges and to move those nominations through rapidly.  During his tenure as President, Donald Trump has nominated and the Senate and confirmed:

  • 3 Justices of the US Supreme Court of the total of 9 justices
  • 53 Judges to the US Courts of Appeals of the total 179 authorized judgeships
  • 162 Judges to the US District Courts of the total 677 authorized judgeships

Donald Trump regularly lists his Court appointments as a success.  He and Mitch McConnell and the Republican majority in the US Senate have gone some distance in changing the character of the US judiciary. In March, 2020, shortly before the pandemic dominated our lives, Senator Mitch McConnell was encouraging senior judges to retire so they could be replaced by newer, younger conservative appointees.

This Letter does not recommend that the Democrats respond in kind.  Democrats should respond by examining problems and finding solutions.  Most of the public conversation, to date, has been about the US Supreme Court.  Democrats hope to elect a President in November and gain a majority in the US Senate.  Anticipating that possibility, many Democrats have urged that the US Supreme Court be expanded to 13 members – a good number for two reasons.  Four new justices appointed by Joe Biden would create a 7-6 majority of Democratic nominees to the Supreme Court.  The number of members of the Supreme Court has in the past been tied to the number of Appeals Court Circuits.  Originally, there were six circuits and six justices of the Supreme Court.  As late as the presidential term of Abraham Lincoln, a tenth Supreme Court position was created to reflect the existence of ten circuits.  There are now thirteen Circuit Courts of Appeal.

In Lens Letter #32, I suggested the Commission urge an expansion of the US Supreme Court to 11 rather than 13.  The expansion of the US Supreme Court to 7 in the penultimate year of Thomas Jefferson’s presidency, gave him time to appoint a new Justice, but left his party, the Democratic-Republicans, one vote short of a majority in the Court.  The solution for the Democrats, as it was for the Democratic-Republicans, is to elect Presidents and legislative majorities.  Until then, as Charles Fried noted in a recent New York Times Op-ed, we can watch to see if the Supreme Court responds to majority opinion. Even newly confirmed Justice Amy Coney Barrett has said, precedents inconsistent with [her understanding of] the original meeting of the Constitution should be overturned only when timely (meaning, as best I could tell, only when that action popular enough to get away with the change).

The Commission should focus on the Federal District Courts and the Circuit Courts of Appeal.  These Courts are criticized for being inefficient.  In preparing for this Letter, I found a 2011 academic article that presumed pathologies like judicial burnout as a cause of inefficiency.  One of the “independent variables” these academics found that caused delays, however, was vacancies in the Circuit.  There’s a clue.  Inefficiencies are a result of not enough judges.

Occasionally, a report about federal courts notes the ratio of judges to the population served.  We can identify the Mitch McConnell and the Super Mitch McConnell standard using that ratio.  The Mitch McConnell Standard: Using the population figures from 2015, the District Court of Kentucky has an almost perfect ratio of 1 judge for 400,000 people in the district (the state) that it serves. The Commission should recommend that all District Courts meet that Mitch McConnell standard of 1 judge for 400,000 people served. A Super Mitch McConnell Standard:  The Circuit Courts of Appeals should be held to a higher standard.  The Commission should recommend that each of the Circuit Courts of Appeals have a ratio like the 10th Circui.  The 10th Circuit has the most judges in proportion to the population it serves – 1 judge for 1.5 million people.

Joe Biden’s Commission should propose an expansion of the District Courts and the Circuit Courts of Appeals to meet those standards and a gradual reduction in the number of judges where the Mitch McConnell standard is exceeded.  Applied to the Circuit Courts of Appeal, a plan to meet the Super Mitch McConnell standard would lead to the creation of 59 new Appeals Court judgeships.

The changes would be:

  1. Add 4 judges to the 1st Circuit (ME, MA, NH, PR, RI) so there would be 9 judges instead of 5, creating a ratio of 1 judge to 1.58 million.
  2. Add 3 judges to the 2nd Circuit (CT, NY, VT) so there would be 16 judges instead of 13 creating a ratio of 1 judge to 1.5 million.
  3. Add 1 judge the 3rd Circuit (DE, NJ, PA) so there would be 15 judges instead of 14 creating a ratio of 1 judge to 1.5 million.
  4. Add 5 judges to the 4th Circuit (MD, NC, SC, VA, WV) so there would 21 judges instead of 16 creating a ratio of 1 judge to 1.48 million.
  5. Add 5 judges to the 5th Circuit (LA, MS, TX) so there would be 23 judges instead of 18, creating a ratio of 1 judge to 1.52 million.
  6. Add 6 judges to the 6th Circuit (KY, MI, OH, TN), so there would be 22 judges instead of 16 creating a ratio of 1 judge to 1.6 million.
  7. Add 6 judges to the 7th Circuit (IL, IN, WI) so there would be 17 judges instead of 11 and a ratio of 1 judge to 1.49 million.
  8. Add 3 judges to the 8th Circuit (AR, IA, MN, MO, NE, ND, SD), so there would be 14 judges instead of 11 creating a ratio of 1 judge to 1.51 million.
  9. Add 14 judges to the 9th Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA) so there would be 43 judgesinstead of 29 creating a ratio of 1 judge to 1.5 million.
  10. Make no changes in the 10th Circuit (CO, KS, NM, OK, UT, WY) keeping 12 judges and a ratio of 1 judge to 1.5 million
  11. Add 12 judges to the 11th Circuit (AL, FL, GA) so there would be 24 judges instead of 12 creating a ratio of 1 judge to 1.58 million.

The Commission should recommend that all District Courts approximate the ratio of judges to the populace that exists for Kentucky – 1 judge for 400,000 residents, the Mitch McConnell standard.  Adoption of the Mitch McConnell Standard for District Courts would lead to 222 new judgeships.  The creation of new judgeships would be partially offset by a gradual reduction of 34 judgeships in districts where the standard is exceeded. A gradual reduction could be to simply not fill seats when there is a vacancy until the target is reached.  A more gradual reduction would be to fill one seat after two vacancies occur until the target is reached.

  1. Maine (1st Circuit) Add 3 judges so there would be 6 District Court judges instead of 3 to achieve a ratio of 1 judge/388,000
  1. MA (1st Circuit) Add 4 judges so there would be 17 District Court judges instead of 13 to achieve a ratio of 1 judge/400,000
  1. NH (1st Circuit). Make no changes in the NH District Court, keeping 3 District Court Judges and the ratio of 1 judge/444,000
  1. PR (1st Circuit) Add 2 judges so there would be 9 District Court judges instead of 7 to achieve a ratio of 1 judge/414,000.
  1. RI (1st Circuit) Make no changes in the RI District Court, keeping 3 District Court judges and a ratio of 1 judge/352,000
  1. CT (2nd Circuit) Add 1 judge so there would be 9 District Court judges instead of 8 District Court judges to achieve a ratio of 1 judge/399,000
  1. NY (2nd Circuit) Add 3 judges so there would be 49 District Court judges instead of 46 to achieve a ratio of 1 judge/404,000.
  1. VT (2nd Circuit) Reduce by 1 the number of District Court judges from 3 to 2 District Court judges when a vacancy arises, achieving a ratio of 1 judge/313,000
  1. DE (3rd Circuit) Reduce by 2 the number of District Court judges from 4 to 2 District Court judges as vacancies arise, achieving a ratio of 1 judge/473,000 ratio
  1. NJ (3rd Circuit) Add 5 judges so there would be 22 District Court judges instead of 17 to achieve a ratio of 1 judge/407,000
  1. PA (3rd Circuit) Add 10 judges so there would be 32 District Court judges instead of 22 to achieve a ratio of 1 judge/400,000
  1. MD (4th Circuit) Add 5 judges so there would be 15 District Court judges instead of 10 to achieve a ratio of 1 judge/400,000
  1. NC (4th Circuit) Add 12 judges so there would be 25 District Court judges instead of 13 to achieve a ratio of 1 judge/402,000
  1. SC (4th Circuit) Add 2 judges so there would be 12 District Court judges instead of 10 to achieve a ratio of 1 judge/408,000
  1. VA (4th Circuit) Add 6 judges so there would be 21 District Court judges instead of 15 to achieve a ratio of 1 judge/399,000
  1. WV (4th Circuit) Reduce by 3 the number of WV District Court judges from 8 to 5 District Court judges as the next three vacancies arise, achieving a ratio of 1 judge/369,000
  1. LA (5th Circuit) Reduce by 10 the number of LA District Court judges from 22 to 12 District Court judges as the next ten vacancies arise to achieve a ratio of 1 judge/389,000.
  1. MS (5th Circuit) Reduce by 1 the number of MS District Court judges from 9 to 8 District Court judges as a vacancy arises, achieving a ratio of 1 judge/374,000
  1. TX (5th Circuit) Add 27 judges so there would be 69 District Court judges instead of 52 to achieve a ratio of 1 judge/398,000
  1. KY (6th Circuit) Make no changes in the 11 KY District Court judges and, keeping the ratio at 1 judge/402,000
  1. MI (6th Circuit) Add 6 judges so there would be 25 District Court judges instead of 19 to achieve a ratio of 1 judge/397,000
  1. OH (6th Circuit) Add 10 judges so there would be 29 District Court judges instead of 19 to achieve a ratio of 1 judge/400,000
  1. TN (6th Circuit) Add 3 judges so there would be 17 District Court judges instead of 14 to achieve a ratio of 1 judge/388,000
  1. IL (7th Circuit) Add 2 judges so there would be 32 District Court judges instead of 30 to achieve a ratio of 1 judge/402,000
  1. IN (7th Circuit) Add 7 judges so there would be 17 District Court judges instead of 10 to achieve a ratio of 1 judge/389,000
  1. WI (7th Circuit) Add 7 judges so there would be 14 District Court judges instead of 7 to achieve a ratio of 1 judge/412,000
  1. AR (8th Circuit) Make no changes in the AR District Court keeping 8 District Court judges and a ratio of 1 judge/425,000
  1. IA (8th Circuit) Add 3 judges so there would be 8 District Court judges instead of 5 to achieve a ratio of 1 judge/390,000
  1. MN (8th Circuit) Add 7 judges so there would be 14 District Court judges instead of 7 to achieve a ratio of 1/392,000
  1. MO (8th Circuit) Reduce by 7 the number of District Court judges from 22 to 15 District Court judges as the vacancies arise, achieving a ratio of 1 judge/406,000
  1. NE (8th Circuit) Add 2 judges so there would be 5 District Court judges instead of 3 to achieve a ratio of 1/379,000
  1. ND (8th Circuit) Make no changes in the ND District Court, keeping 2 District Court judges and the ratio at 1 judge/378,000
  1. SD (8th Circuit) Reduce by 1 the number of District Court judges from 3 to 2 District Court judges as a vacancy arises, achieving a ratio of 1 judge/429,000
  1. AK (9th Circuit) Reduce by 1 the number of District Court judges from 3 to 2 District Court judges as a vacancy arises, achieving a ratio of 1 judge/369,000
  1. AZ (9th Circuit) Add 4 judges so there would be 17 District Court judges instead of 13 to achieve a ratio of 1/402,000
  1. CA (9th Circuit) Add 37 judges so there would be 98 District Court judges instead of 61 to achieve a ratio of 1/399,000
  1. HI (9th Circuit) Make no changes in the HI District Court, keeping 4 District Court judges and the ratio of 1 judge/358,000
  1. ID (9th Circuit) Add 2 judges so there would be 4 District Court judges instead of 2 to achieve a ratio of 1/414,000
  1. MT (9th Circuit) Make no changes in the MT District Court, keeping 3 District Court judges and the ratio of 1 judge/344,000
  1. NV (9th Circuit) Make no changes in the NV District Court, keeping 7 District Court judges and the ratio of 1 judge/413,000
  1. OR (9th Circuit) Add 4 judges so there would be 10 District Court judges instead of 6 to achieve a ratio of 1/403,000
  1. WA (9th Circuit) Add 7 judges so there would be 18 District Court judges instead of 11 to achieve a ratio of 1/398,000
  1. CO (10th Circuit) Add 6 judges so there would be 13 District Court judges instead of 7 to achieve a ratio of 1/420,000
  1. KS (10th Circuit) Add 1 judge so there would be 7 District Court judges instead of 6 to achieve a ratio of 1/416,000
  1. NM (10th Circuit) Reduce by 2 the number of District Court judges from 7 to 5 District Court judges as vacancies arise, achieving a ratio of 1 judge/417,000
  1. OK (10th Circuit) Reduce by 3 the number of District Court judges from 13 to 10 District Court judges as vacancies arise achieving a ratio of 1 judge/391,000
  1. UT (10th Circuit) Add 2 judges so there would be 7 District Court judges instead of 5 to achieve a ratio of 1/428,000
  1. WY (10th Circuit) Reduce by 1 the number of District Court judges from 3 to 2 District Court judges as a vacancy arises achieving a ratio of 1 judge/293,000
  1. AL (11th Circuit) Reduce by 2 the number of District Court judges from 14 to 12 District Court judges as vacancies arise achieving a ratio of 1 judge/405,000
  1. FL (11th Circuit) Add 14 judges so there would be 51 District Court judges instead of 37 to achieve a ratio of 1/397,000
  1. GA (11th Circuit) Add 8 judges so there would be 28 District Court judges instead of 18 District Court judges to achieve a ratio of 1/393,000

This exploration was undertaken to consider what Joe Biden’s Commission might recommend in order to reform he Federal District and the Circuit Courts of Appeals.  Reform would expand those Courts as well as the US Supreme Court, creating more judgeships.  Joe Biden and a Democratic House and Senate would have the opportunity to create those judgeships. When and if it becomes apparent that Joe Biden is elected President and a Democratic House and Senate have been elected, Joe Biden should name his Commission immediately and put it to work.

The product of the Commission’s work will not be a response in kind to the efforts by Donald Trump, Mitch McConnell, and the Republican Senate to transform the Courts.  This Commission would be recommending a solution to a problem.  Joe Biden can get his team working on planning that solution before he takes office.