Erwin Chemerinsky: Why we need to reshape the federal judiciary

Judicial Doomsday clock, by Steve Benson

This article first appeared in The New York Times on Feb. 11 and is reprinted with permission.

By Erwin Chemerinsky

In just one term, the Trump administration reshaped the federal judiciary. Working closely with a Republican Senate, the Trump White House appointed more than a quarter of all active judges, including three Supreme Court justices and more than four dozen appeals court judges — 245 judges in all, more than other recent presidents in their first terms.

The judges have life tenure and are, by and large, relatively young. Seventy-six percent are men; 84 percent are white. And overwhelmingly, they are staunchly conservative. So, the impact on the federal courts will be significant and extend for decades.

Now that the Democrats have won back the White House and control of the Senate, the party must grab its opportunity and focus on nominating and confirming judges. It’s especially urgent because they have control over the Senate by a single vote, and it’s unclear if they will be able to maintain control after the midterm elections.

To that end, Justice Stephen Breyer should seriously consider stepping down from the Supreme Court in July 2021, at the end of the court’s current term. Justice Breyer will be 83 in August and has been a justice since his 1994 appointment by President Clinton. He should give President Biden the chance to replace him while the Senate is in Democratic hands.

The Senate’s majority leader, Chuck Schumer, must be at least as aggressive in the effort to reshape the judiciary as his Republican predecessor, Mitch McConnell, was. And McConnell was very aggressive. As his former Chief of Staff Josh Holmes put it: “McConnell knows that from a legacy point of view, from a view of center-right America, this is the most important thing you can do.”

The unfortunate fact is that Democrats have not always made filling judgeships a priority. Clinton took office in January 1993 with many unfilled judgeships. Two years later, when the Republicans took control of the Senate, many of those posts remained open. President Obama was also slow in appointing judges.

The Democrats should increase the number of District Court and Court of Appeals judgeships. Entirely apart from helping to restore ideological balance in the federal courts, this increase is desperately overdue. The last significant expansion in the federal judiciary was in 1990, when the Civil Justice Reform Act created 11 new circuit judgeships, 61 new district judgeships, and 13 temporary district judgeships.

Court filings have significantly increased since the last time some new federal judgeship posts were created.

Our courts have been in crisis as a result. From 1990 through the end of 2018, case filings in appeals courts grew by 15 percent and in District Courts by 39 percent.

For example, in the Eastern District of California, which covers the Central Valley up through Sacramento, no new judicial posts have been created in more than 40 years, even as the population of that district grew by more than 5.5 million people. Even before the effects of the pandemic, wait times for civil trials in the Eastern District of California were approaching five years and, for average people seeking relief, there seems to be little or no prospect of ever getting their cases resolved.

It can be nearly impossible for people to get their cases heard in many federal courts because of the colossal logjam of cases. District judges no longer have time to hear oral arguments in many cases. Litigants often are being told that they might want to consider other avenues, like arbitration. Those with deep pockets may be able to wait it out or pay for arbiters to resolve disputes privately, but for most Americans, the current situation is a huge barrier to ever getting justice.

Also, federal judges who are eligible for senior status should take it. Those judges can still handle cases, helping to increase the capacity of the federal judiciary. But by taking senior status, they would also open up their seats and give Democrats a chance to replace them. During the Obama presidency, a number of liberal appeals court judges declined to take senior status when they could have. When they eventually left the bench, it was too late for Democrats because Republicans had taken control of the Senate. President Trump appointed conservatives to take their place.

The importance of the federal courts cannot be overestimated. Criminal prosecutions, civil rights lawsuits, copyright and antitrust matters, claims of religious freedom and countless other matters flow through those chambers. Federal courts also address some of the most pressing problems of our times. They are the last protection against abuses by other branches of government.

The Democrats must make haste and follow the example of their Republican counterparts by making the federal judiciary their urgent priority.

Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley. He is the author, most recently, with Howard Gillman, of The Religion Clauses: The Case for Separating Church and State.