GOP's court-packing spree: It's only the beginning

Conservatives have an ambitious plan to stack the judiciary deep into the future. Progressives must fight back

By Paul Rosenberg

Contributing Writer

Published December 3, 2017 12:00PM (EST)

 (Getty/Nicholas Kamm/Alex Wong/Salon)
(Getty/Nicholas Kamm/Alex Wong/Salon)

For all of Donald Trump’s hollow bluster about his supposed accomplishments, the one place he’s winning bigly is largely overlooked: packing the federal courts as quickly as possible. As Amanda Marcotte wrote here on Nov. 8, “Senate Majority Leader Mitch McConnell and Sen. Chuck Grassley, who chairs the Senate Judiciary Committee, have set up a factory-style assembly line for Trump's judicial nominees and are getting them confirmed at a dizzyingly fast rate.”

Thanks to GOP obstruction, Trump entered office well-positioned for the task, as Susannah Jacob explained here in August. “When Obama entered office, there were 54 judicial vacancies. President Trump now has the opportunity to fill over 130,” she wrote, adding:

“This will be the single most important legacy of the Trump administration,” Democratic Sen. Chris Coons of Delaware told Business Insider’s Allan Smith. “They will quickly be able to put judges on circuit courts all over the country, district courts all over the country, that will, given their youth and conservatism, have a significant impact on the shape and trajectory of American law for decades.” Trump has the power, Coons said, to bring about “a wholesale change among the federal judiciary.”

But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms.

How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse.

Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process.

Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers.

Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.”

But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system.

Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose.

The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.”

There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all.

“But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system.

The reason they might do that brings us to the second remarkable thing Primus notes:

Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power.

It’s not an idea in isolation, he notes. It echoes the Republicans' refusal to consider Obama’s nomination of Merrick Garland to the Supreme Court and their decision to confirm only two circuit court justices during his last two years, along with public statements by “Republican Senators from McConnell to Cruz to McCain [who] said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.” In all these cases, Primus writes:

The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal. Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it. No. They are to be regarded unfit per se.

It’s this assumption, he writes, that “can explain what would otherwise be one of the most puzzling aspects of the proposal — that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.”

If the proposal passed, he notes, once Democrats again had unified control of the White House and Senate, “they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back,” and possibly to expand the size of the Supreme Court as well, to counteract the theft of Garland’s seat. “With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.”

Surely “Calabresi and Hirji can foresee this chain of events as easily as I can,” Primus writes, so why make their proposal? There’s one perspective that he says could explain it:

We don’t think in terms of the Democrats one day coming back into power. We are building for a world in which they never exercise power. And if the Democrats do return to power, then the Republic won’t be worth saving anyway. In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system. It’s the last round, and it’s a fight to the finish.

One flaw in this analysis is the assumption that Democrats will act just like Republicans, but that sort of symmetry simply doesn’t exist — either at the levels of the parties, or at the level of animating ideologies. The willingness to disrupt norms, to violate the small-c constitution, is far more evident on the right than the left.

Harvard Law professor Mark Tushnet coined the term “constitutional hardball” to describe it in a 2003 paper, and I wrote four stories about the GOP’s engagement in it between the 2014 midterms and the 2016 election, starting with efforts to subvert the Electoral College by changing the way certain states choose their electors, and ending with an Election Day story on norm erosion dating back to the 1990s. In between, in March 2015, I wrote a deep dive into the concept and how important it’s been to the modern GOP, and in February 2016 I wrote about Republican refusal to let Obama appoint a Supreme Court justice as a prime example of constitutional hardball.

Tushnet’s analysis makes it clear that anyone can play the game, but he also gives a reason why Republicans play it much more vigorously. He sees it as an effort to change what he calls “constitutional orders,” and Republicans have been trying to change the constitutional order initiated under Franklin D. Roosevelt for a very long time now. But there are also other perspectives on why there might be such a powerful asymmetry. David Hopkins, co-author of "Asymmetric Politics: Ideological Republicans and Group Interest Democrats" (Salon review here) had several thoughts.

“It does seem to be true that the American right is more comfortable playing hardball than the left,” Hopkins told Salon. “One reason, I think, is that there is a greater sense of urgency on the right. Many conservatives are frustrated with their lack of progress over the years in rolling back the modern domestic state, while the leftward drift of American culture further contributes to their disaffection and alienation. If existing norms of governance have helped lead us to this current state of affairs, they reason, then perhaps these norms do not deserve much deference.”

There’s also an inhibition working on the other side. “It’s also the case that the center-left in America tends to have a lot of philosophical investment in the practice of procedural ‘fairness,’ which often makes it uncomfortable with aggressive displays of political power even on its own behalf,” Hopkins said. Indeed, ever since the 1950s, there have been comments about how liberals have become de facto conservatives, protectors of the established order.

“Finally, I think it’s clear that conservatives prioritize representation in the judicial branch much more than liberals do at this period in history," Hopkins concluded. "Control of the court system, up to and including the Supreme Court, simply matters more these days to conservatives, who view the federal judiciary as broadly hostile to their beliefs and capable of threatening their political values and power via adverse rulings.”

Corey Robin, author of "The Reactionary Mind: Conservatism From Edmund Burke to Donald Trump" (Salon review here), took a longer view. “At moments of realignment, for example, American liberalism wasn't thinking in terms of iterative games or Burkeanism,” he said. “It saw itself, and rightly so, as transforming the rules of the game, of permanently altering the terms of discussion. And it saw itself as being the gravediggers of a pathological formation that would never return: the slaveocracy, in the case of Lincoln and the Radical Republicans, and the Gilded Age oligarchy, in the case of the New Deal.” In this larger historical framework, both sides have been equally capable of playing constitutional hardball, as Tushnet argues.

“Conversely, what I see in this current proposal from the conservatives is less a feature of permanent conservative thinking — though I can see why you would say that, what with references to ‘the last round’ — than a sign of conservative weakness,” Robin said. “I think conservatives see themselves in a race against time: counterintuitively, and in contrast to [Primus], I think they anticipate that their hold on political power is slipping ... and they see the judiciary as a way of locking in their gains long past the expiration date.”

This is certainly in keeping with their wide-ranging voter-suppression efforts, along with the ambitious $30 million gerrymandering scheme described by former Salon editor David Daley in "Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy."

“Their model here is the Gilded Age judiciary, which was able to hold the line against growing populist and legislative attacks on economic wealth and power,” Robin said. “So it is a last round, and it is a fight to the finish, but it's a fight they except to lose in every respect save one: their lock on the judiciary. History suggests that is not an irrational way of thinking about their current predicament, insofar as the Lochner-era Supreme Court [from about 1897 to 1937] and lower courts really did strike down progressive legislation for decades.”

Yale Law School’s Jack Balkin takes a similar view, at his Balkinization blog, where Primus is also a contributor. He sees little likelihood of Calabresi’s plan being enacted. “I think that we should consider Calabresi's memo for what it is — a dream of a better world,” he writes, adding that it should be examined as Freud would, to make sense of the “predicaments, anxieties, and concerns” that it expresses — especially the stark contrast between the GOP’s dominant formal power and its decaying power as a movement:

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. ...  Even so, as the regime decays, factionalism and radicalism undermine the party's coalition and make even the simplest tasks difficult.

But as Robin notes, the Gilded Age oligarchs held onto their power in the courts for decades, long after they had lost electoral credibility. While it may be comforting, in the abstract, to see Trump’s current judicial power grab as a sign of his party’s weakness, that does nothing to soften the blows that will be coming from the bench at the hands of the scores of judges he has already nominated, with many more to come.

Progressives damn well ought to be thinking in terms of playing constitutional hardball themselves. At least as far back as Bush v. Gore, conservatives have relied on the courts as an illegitimate source of power. By de facto appointing George W. Bush president (see "Jews for Buchanan" for the multitude of ways in which the election was stolen), the 5-4 Supreme Court decision effectively selected two of its successors, yet another profound violation of constitutional norms. That means we are now up to three Supreme Court justices who can be seen as illegitimate — plus, of course, Clarence Thomas, whose decades-long evasion of accountability for an egregious pattern of sexual harassment surely ought to be brought to a belated end. Plus all the lower court judges Bush appointed during his two terms in office.

Primus provides us with an excellent framework for understanding the dangers of allowing constitutional hardball to run amok. We can hope that Calabresi’s plan won’t be enacted, making things incalculably worse. But there are severe dangers of not engaging in constitutional hardball, as well. As Tushnet himself (also at Balkinization) put it:

If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective.

He went on to say:

My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to undo the Republicans' theft of the Garland seat. ...

The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with it." Seems like a good new norm to me.

The situation is obvious: We’re already living in a badly damaged “normal” state, and a perniciously diminished, self-limiting form of liberalism is largely responsible for that. The Calabresi plan should be a wakeup call for progressive activists, not just to fight back against the ongoing Trump takeover of the courts but to begin crafting a serious, far-reaching constitutional hardball strategy of our own, Tushnet’s Supreme Court proposal is a good starting point — but it’s only a start. We need to see ourselves, to borrow Robin's phrase, as the future gravediggers of this pathological formation, which we fervently hope will never return.

By Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News and columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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