‘Packing’ federal courts is already a serious problem
Even before Amy Coney Barrett was confirmed as an associate justice of the U.S. Supreme Court, the movement among Democrats to alter the court’s composition by increasing the number of justices, or “packing,” was in full swing.
Such a movement is understandable, given that the accession of Justice Barrett marks a decisive triumph of originalist jurisprudence in a dispute that began with the rejection of Judge Robert Bork, an original originalist, in 1987.
That ideological struggle is now a rout. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett all have espoused some form of originalism in their writings or jurisprudence. Originalism — the view that the public understanding of the Constitution or its amendments at the time of adoption should shape, if not control, future interpretation — has moved from the fringe to the mainstream of constitutional interpretation on the court.
The hardening of the articles is upon us.
Hence the desire to dilute the effect of originalism by increasing the number of justices on the court. This idea, of course, is not new. President Franklin Roosevelt, frustrated by a conservative court’s invalidation of major aspects of the New Deal, attempted to pack the court in the 1930s. His effort was roundly condemned even by political allies; as recently as last year, Justice Ruth Bader Ginsburg, whose seat Justice Barrett occupies, dismissed such notions as foolhardy, stating “nine seems to be a good number.”
Former vice president Joe Biden — invoking the time-honored method of deflecting a bad idea by studying it to death — has vowed to create a commission to study the composition of the court if he is elected. Biden’s commission would examine whether increasing the number of justices or setting a term limit for service on the court, would be viable options.
Unbalanced composition of the Supreme Court is a concern, but only as part of a larger, more serious problem: the court-packing that is already going on. I refer to the time-honored practice of presidents appointing only — with few exceptions — partisan members of their own party to the federal bench.
Consider the absurdity of this practice. Presidents typically are elected by the narrowest of margins, a percentage point or two; a 54 percent win is considered a landslide. But that margin, however small, has entitled them to populate the federal bench with judges whose views reflect the views of barely half of the voting population. This practice has accelerated in recent years, with the removal of the requirement of 60 votes to move forward, the curtailment of hearing time for judicial nominees, and the discarding of the “blue slip” practice that allowed senators to block nominees from consideration.
Sen. Mitch McConnell (R-Ky.) has been exultant recently over the Trump administration’s appointment of more than 200 conservative federal district court and circuit courts of appeal judges and three Supreme Court justices: a remarkable feat for a president elected with under 50 percent of the vote.
Does it matter? Of course it does, because such one-sidedness highlights our courts’ greatest vulnerability: their legitimacy.
It is an observation as old as our republic that the federal courts have no self-executing authority. Their rulings are only as legitimate as they are persuasive: to the executive and legislative branches of the federal government, to the states, and ultimately to the public.
But the one-sided nature of federal judicial appointments — particularly in our time, when each party bitterly contests the legitimacy of the other — can lead, in the long term, to eventual defiance of the judiciary’s rulings as fatally politically tainted. President Trump’s open contempt for some judges and some rulings foreshadows a dark age indeed.
Alternatives do exist. “New Jersey Justice” was considered a jurisprudential joke for much of the 19th and the first half of the 20th centuries. The adoption of a new state constitution in 1947 was accompanied, however, by an agreement that judicial appointments, which are made by the governor with advice and consent of the Senate, would reflect partisan balance, with roughly equivalent numbers of Democratic and Republican, and occasional independent, seats; the state Supreme Court would be 4-3 Democrat or Republican, depending on the party of the governor making the decisive appointment. In the 1980s, Republican Gov. Thomas Kean, later of 9/11 Commission fame, reappointed a Democrat, Robert Wilentz, as New Jersey’s chief justice.
The requirement that New Jersey governors appoint roughly half of the judges from outside their party has resulted in a largely nonpartisan state judiciary; Democratic governors have tended to appoint moderate Republicans, and Republican governors have tended to appoint moderate Democrats. Although no system is perfect, on balance New Jersey’s has worked well.
Nor is New Jersey alone in requiring partisan balance in its judiciary. Delaware went beyond tradition, enshrining in its state constitution requirements that no more than a “bare majority” of the composition of the state’s five main courts can be composed of judges affiliated with a single political party; composition of the state Supreme Court, Court of Chancery and Superior Court is limited to a “bare majority” of one “major party” and a minority from the “other major party.” (The latter scheme, of course, excludes political independents — typically a larger group than either Democrats or Republicans — from service as judges on the state’s Supreme Court, Court of Chancery and Superior Court; a first amendment challenge to it, Carney v. Adams, was the first case argued in the U.S. Supreme Court this term.)
The adoption of a similarly balanced approach at the federal level may seem a pipe dream at best. The temptation for a Biden administration, in tandem with a Democratic Senate, to respond in kind to McConnell’s aggressively ideological approach to filling judicial vacancies may well prove overwhelming. But statesmen and women of both parties should think long and hard about the ramifications of hard partisanship. The long-term cost of the parties’ one-sided approach to judicial nominees will be seen in a decline in the perceived legitimacy of federal court decisions, no matter who is issuing them.
John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.