by Mitch Kokai
Senior Political Analyst, John Locke Foundation
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.
Calabresi’s primary argument is that that the administration of justice could be improved by reducing the workload of our increasingly taxed judiciary. No argument there, but the size and scope of the expansion he proposes — whereby a single President could transform the judiciary in short order — is entirely disproportionate to the nature of the problem. Second, unlike past such proposals, which were extensively debated and passed through Congress with bipartisan support, Calabresi wants his plan to be rammed through using the reconciliation process, which would bypass the filibuster and the need it creates to consult with Democrats. In 2020 and beyond, Democrats would show no restraint in accelerating this race to the jurisprudential bottom. Third, and most importantly, Calabresi’s explicit coupling of the creation of judgeships with “undoing the judicial legacy of President Barack Obama” undermines the memorandum’s neutral justifications. Conservatives who care about the federal judiciary should disavow this proposal.