The Trump administration had very few accomplishments. Oh, they succeeded at destroying any number of things, like faith in democracy, but Trump and his cronies achieved very few of their “policy” goals. They didn’t build a wall. They didn’t repeal and replace Obamacare. They didn’t make America great. They didn’t really do anything they promised to do, except cut taxes for rich people—and stack the judiciary with conservative judges. In that one area, the Trump administration was wildly successful. It left behind over 200 federal judges who will be pushing the Republican agenda long after Trump (and many people reading this column) have slipped this mortal coil.
Thus far, the Biden administration has only confirmed 14 federal judges. That’s not entirely Biden’s fault. He has nominated 41 federal judges to fill the 82 vacancies (as of September 1), but Senate Democrats have been slow at confirming most of the president’s picks. While Mitch McConnell used his Senate majority primarily as a judicial confirmation machine, Democrats in the Senate refuse to get at that level. Sure, we can blame Joe Manchin or Kyrsten Sinema or Mercury in retrograde or evil Grumpkins or whatever other lame excuse Democrats want to offer for their inaction. But at some point, Senate majority leader Chuck Schumer and Senate Judiciary Chairman Dick Durbin need to prioritize judges above all else—the same way McConnell has—or Democrats will once again fail at even this most basic task of protecting the rights of women, people of color, and the LGBTQ community from Republicans.
But filling the vacancies already available is kid’s stuff—kid’s stuff the Democrats can’t seem to get right, but that is nonetheless straightforward and obvious. What Biden and the Democrats really need to do is expand the federal judiciary and add more judges, not just to the Supreme Court but to the lower federal courts as well.
Whenever court expansion comes up, most Democrats—and most of the mainstream media—recoil from it as if it’s a brazenly partisan maneuver that delegitimizes the courts. But, as I’ve argued repeatedly, expanding the courts is a form of reform, not merely revenge. Expanding the Supreme Court is a way to depoliticize judicial nominations, rendering each individual justice less powerful and thus pulling fights over their replacements somewhere back from the brink of all out political warfare. More justices would also lead to more moderate opinions, as herding, say 10 or 15 justices into a majority likely requires more compromise than getting five people on board.
For the lower courts, the reform argument is even stronger because there are simply not enough judges on these courts to do all the work. There’s a literal crisis on the bench, due to a lack of judges, and the current situation in Oklahoma, of all places, brings the problem into stark relief.
In 2020, the Supreme Court ruled that Indigenous people in Oklahoma who have allegedly broken the law cannot be prosecuted by the state of Oklahoma. Instead, the authority to prosecute and incarcerate people living on tribal lands falls squarely in the purview of the federal government, through the federal court system. The Supreme Court essentially upheld an 1856 treaty with the Creek Nation that gives federal, not state, authority over disputes involving their land.
Predictably, the ruling placed a lot of pressure on federal courts in Oklahoma to hear criminal cases that had traditionally been brought in state court. It also gave Indigenous people incarcerated in Oklahoma grounds for a federal appeal.
According to a new report by the Judicial Conference, a bipartisan commission of former judges who make policy recommendations about the federal court system, the criminal caseload in the Northern District of Oklahoma has increased 400 percent since the ruling. The caseload in the state’s Eastern District has increased 200 percent. The Department of Justice has added 33 criminal prosecutors to these districts (up from eight), but the Congress has added zero new federal judges, so Oklahoma has been bringing in judges from other jurisdictions to share the load. The Judicial Conference suggests adding five new district court judges, across the two districts, just to handle the work.
Oklahoma is facing an acute crisis, but it is not the only jurisdiction dealing with a lack of judges. You can see district judges being crushed under the weight of litigation all across the country. The Judicial Conference recommends adding 70 new lower court judges to the federal judiciary, including 65 at the district level, and that estimate is conservative when you consider that federal felony cases have gone up by 60 percent since the last time the lower courts were expanded, way back in 1990.
The question isn’t whether the lower courts need to be expanded but who is going to be in the White House when that expansion inevitably happens.
We know what McConnell will do. He has already indicated that he will be unwilling to confirm a nominee to the Supreme Court should Republicans take back the Senate and a spot open up in 2023. We can also assume that McConnell will not allow Biden to expand the courts and fill them with judges—even judges that are sorely needed—should Republicans prevail in the midterms. And we can be relatively certain that, should Republicans take back the White House in 2024, they will expand the lower courts and fill them with 70-odd hardcore conservative judges to further cement the GOP’s stranglehold on the third branch of government.
Which brings us back to the Biden administration. The reluctance to expand the Supreme Court is one born of political cowardice, but the refusal to expand the lower courts to address an ongoing crisis in the judiciary is governmental malpractice. Judges are needed. The option is to add 70 judges now, or wait until the Republicans can add 70 later. I have no idea why the Biden administration seems to prefer the latter option.
The frustrating thing is that it might already be too late for Democrats to address this problem. Again, Biden has nominated 41 judges, but the Senate, controlled by Democrats, has been painfully slow to confirm them. To expand the lower courts, Democrats need to draft the legislation, pass it through both chambers of Congress, vet and nominate scores of judges, and then get all those judges confirmed—all before January 2023, and all without a single Republican vote. That might have been possible if Biden had made confirming judges the sole focus of the United States Senate, as McConnell did, right out of the gate. Instead, Biden has treated the judiciary—which I’ll again remind people is an entire branch of coequal government—as some kind of afterthought to be addressed only after planes, trains, and automobiles.
As I said, Biden and the Democrats have confirmed 14 federal judges, so far. That is exactly how many Trump judges McConnell confirmed… in the period after Trump’s election night loss on November 3, 2020, before Biden was inaugurated on January 20.