Conservatives have a new court-packing plan, and in the spirit of the holiday, it's a turducken of a scheme: a regulatory rollback hidden inside a civil rights reversal stuffed into a Trumpification of the courts. If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325). American law will never be the same.It probably saved us from a legal catastrophe.
The "outer turkey" in the plan is the ongoing Trumpification of the courts. In the final two years of Obama's presidency, Senate Republicans engaged in tenacious obstruction to leave as many judicial vacancies unfilled as possible. The Garland- to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, "the number of [judicial] vacancies . . . on the table when [Trump] was sworn in was unprecedented," White House Counsel Donald McGahn recently boasted to the conservative Federalist Society.
Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama's tenure, he nominated 20 judges to the federal trial and appellate courts; in Trump's first nine months, he named 58. Senate Republicans are racing these nominees through confirmation; last week, breaking a 100-year-old tradition, they eliminated the "blue slip" rule that allowed home-state senators to object to particularly problematic nominees. The rush to Trumpify the judiciary includes nominees rated unqualified by the American Bar Association, nominees with outrageously conservative views and nominees significantly younger (and, therefore, likely to serve longer) than those of previous presidents. As a result, by sometime next year, 1 in 8 cases filed in federal court will be heard by a judge picked by Trump. Many of these judges will likely still be serving in 2050.What. appointing real judges instead of bureaucrats acting as judges?
But even this plan — to fill approximately 150 judicial vacancies before the 2018 elections — is not enough for conservatives.
Enter the next element of the court-packing turducken: a new plan written by the crafty co-founder of the Federalist Society, Steven Calabresi. In a paper that deserves credit for its transparency (it features a section titled "Undoing President Barack Obama's Judicial Legacy"), Calabresi proposes to pack the federal courts with a "minimum" of 260 — and possibly as many as 447 — newly created judicial positions. Under this plan, the 228-year-old federal judiciary would increase — in a single year — by 30 to 50 percent.
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Almost overnight, the judicial branch would come to consist of almost equal parts judges picked by nine presidents combined — Johnson, Nixon, Ford, Carter, Reagan, Bush 41, Clinton, Bush 43 and Obama — and judges picked by one: Donald J. Trump. The effect on our civil rights and liberties would be astounding. And a continuation of the pattern of Trump's nominees to date — more white and more male than any president's in nearly 30 years — would roll back decades of progress in judicial diversity.
But even that isn't enough for the Turducken Court Packers. They have jammed one more "treat" inside this turkey.
Calabresi has also proposed that Congress abolish 158 administrative law judgeships in federal regulatory agencies, such as the Environmental Protection Agency, Food and Drug Administration, Federal Communications Commission, and Securities and Exchange Commission, and replace these impartial fact-finders with a new corps of 158 Trump-selected judges who — unlike current administrative law judges — would serve for life.
These new Trump administrative law judges would have vast power over environmental, health and safety, fair competition, communications, labor, financial and consumer regulation for decades. Unlike the existing administrative law judges, selected as nonpartisan members of the civil service, Calabresi's replacement corps would all be picked in a single year, by a single man: Donald J. Trump.Sounds good to me.