by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Republicans are looking for a win with their new tax-reform bill. But they could get two wins in one: In addition to overhauling the tax system, the bill could fund many new federal judgeships. Not only would this address a genuine crisis in the judicial branch, but it would give President Trump a chance to undo Chuck Schumer’s packing of the lower federal courts, which the latter accomplished by filibustering President George W. Bush’s judicial nominations and then eliminating the filibuster for lower-court nominees under Barack Obama.
So far, President Trump and the Republican Senate have delivered spectacularly on filling the judgeships that were vacant when President Trump took office. One can tell this from the squeals of pain this past weekend from the New York Times complaining that Trump is taking over the lower federal courts.
The appointment of Justice Neil Gorsuch to the Supreme Court and President Trump’s appointments to the lower federal courts have been superb. But Trump has appointed only eight of 169 federal appeals-court judges, with only a few vacancies left to be filled. This is not even remotely a takeover of the federal courts of appeals. It at most constitutes a pin-prick.
To truly have an effect on the judicial branch, the Republican Congress needs to appropriate funds to increase the size of the lower federal courts. Our suggestion, spelled out more fully in our new paper, would be to boost the total number of judges by roughly 33 percent, as President Jimmy Carter and a Democratic Congress did in the 1970s.