Can Biden Fix the Courts That Trump Broke?

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When President Joe Biden finally took the oath of office on January 20, he inherited not merely the White House, the nuclear codes, and the reins to the most powerful government on earth, but also a mess.

The fact of that mess wasn’t altogether unusual. It’s become something of a trend in recent decades for Republicans, who don’t think government can work, to spend their years in power breaking it in order to fulfill their own prophecy; it then falls to Democrats to spend their years in power fixing what Republicans destroyed.

But Biden’s mess is somewhat bigger than the messes inherited by his Democratic predecessors, Barack Obama and Bill Clinton, after other disastrous Republican administrations. The enhanced difficulty stems in part from the Covid-19 pandemic and the multiple crises it has spawned, from the enduring spread of the virus to the near-collapse of the economy. But those are fires that the Biden administration, alongside Democrats in the House and Senate, can put out—and are beginning to put out—without the consent of the Republican Party, if need be. The $1.9 trillion stimulus package passed in March has already begun dribbling relief into American bank accounts, and the administration’s mass vaccination effort is expected to bring back glimmers of normalcy by July. If there’s a message the Biden administration seems to be pushing during its first months in office, it’s that government works.

Where the clean-up effort gets complicated is around the laws and norms we’ve set up to keep our system functioning. While previous Republican administrations tried to break government, Donald Trump tried to break democracy. He did this boldly and brazenly, by attacking elections, and he did it less boldly but no less brazenly, by working alongside Mitch McConnell to take over the unelected branch of government that sets the rules for all the others: the federal judiciary. That branch is now stuffed with conservative ideologues masquerading as jurists.

When Trump took office in 2017, he inherited 108 federal judicial vacancies, thanks to McConnell’s systematic obstruction of Obama’s judicial nominees. During the next four years, he appointed 226 judges, including three US Supreme Court justices, 54 US court of appeals judges, and 174 US district court judges. Those judges represent just over a quarter of the federal bench and helped flip entire federal courts of appeals—including the Third Circuit (which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands) and the 11th Circuit (which covers Florida, Georgia, and Alabama)—from Democratic to Republican control. Trump also, of course, reshaped the Supreme Court, transforming it from an institution split 4-4 between conservatives and liberals to one dominated 6-3 by conservatives.

All of these Trump judges are appointed for life. Some will outlive me. If Republicans never win another election, there will still be Trump judges wielding significant power into the 2060s, warping the legal landscape. To put it in geological terms, if Trump is the Chicxulub asteroid, his judges are the ensuing, cataclysmic climate change that actually killed the dinosaurs.

The Republican grip on the judiciary is an existential crisis for the progressive agenda—or it would be if progressives had a better understanding of what conservative judges do for a living. As it is, their interest rarely seems to stray much beyond the Supreme Court. That’s a serious matter. But Trump’s wholesale reshaping of the lower courts is at least as troubling. These courts are the first responders to attacks on our basic freedoms and human rights. They are the places where policies go to be debated, held up, or torn down. And as things stand now, most progressive policies and many of the immediate goals of the Biden administration won’t survive their first contact with the reality of these revamped courts.

This isn’t speculation; it’s already happening. Consider Biden’s number one priority: Covid-19 relief. The Centers for Disease Control and Prevention enacted a new moratorium on evictions after the initial one, passed through the CARES Act, expired last summer. But in late February, a single Trump-appointed district court judge, a 40-year-old who graduated from law school in 2005, scuttled the whole thing. He struck down the CDC’s order, and while his opinion is embarrassingly wrong and illogical (he basically said that renting a house is not commerce, as understood through the commerce clause in the Constitution, and therefore can’t be regulated by the federal government, which is like me saying this article doesn’t qualify as protected speech unless I personally read it aloud), it doesn’t matter. He’s appointed for life, and he gets to be wrong and illogical about the law until some other judge overrules him.

The problem is that overruling a judge takes time, even when the judge doesn’t know the difference between a renter and a house guest. A bad ruling from a federal judge must first be appealed to one of the 13 courts of appeals, which are regional federal courts spread throughout the country. These courts are supposed to overturn cases only when there’s been a clear error in law (I believe “not knowing what commerce is” would apply). Most disputes about federal law or policy will never get further than a court of appeals. The Supreme Court hears only 100 to 150 cases out of the 7,000 appealed to it every year. This means that for the overwhelming majority, the lower court ruling is final.

In the meantime, those lower courts can act with lightning speed to stop an entire federal law in its tracks. There are 677 district court judges, and every one of them has the power to issue temporary restraining orders (or TROs) blocking the implementation of federal legislation until a full trial can be held about the law or policy.

Republicans complained about TROs when judges used them to temporarily block some of Trump’s more alarming policies (such as the wall and the Muslim ban), but they aren’t complaining anymore. In fact, a Trump appointee has already used a TRO against the new administration: On January 26, less a week into Biden’s term, a district court judge in Texas blocked the administration’s moratorium on deportations.

And more are bound to follow. There’s not a single gun regulation that will survive a TRO from a Trump judge, even a massively popular reform like background checks. Not a single stringent environmental rule will make it through a Trumpian judicial gauntlet. No education reform will survive judges who helped former education secretary Betsy DeVos craft illegal policies.

And that’s just the easy stuff for Republican judges to block, the stuff they do for fun; human suffering is entertainment for these people. They save their true passion for suppressing the vote.

The courts are the most critical pillar in the Republican scheme to rig elections. Red-state governments pass voter suppression laws knowing they’ll be upheld by courts that conservatives control. District court judges get first crack at any constitutional issues that arise from interpreting the Voting Rights Act, or the 15th Amendment’s prohibition against voter discrimination on the basis of race, or the 24th Amendment’s abolition of poll taxes. By controlling these courts, Republicans can functionally control the rules of who gets to vote, when they get to vote, and how those votes will be counted.

Biden and the Democrats can’t counteract this kind of entrenched Republican rule with legislation and get-out-the-vote campaigns. And they can’t simply fill the open judgeships that have been left available to them: Biden inherited only 68 judicial vacancies, which is low compared to what Trump had at the start of his term. Biden is going to have to work outside of the box left for him by McConnell if he wants to secure democratic self-government. And he is going to have to work quickly.

If he doesn’t, the Republicans’ voter suppression efforts will likely enable them to retake the Senate in 2022 and the White House in 2024. This gives Biden a very short time to capitalize on the Democratic majority in the House and the one-vote majority in the Senate, courtesy of Vice President Kamala Harris. He can spend that time passing legislation that will be enjoined by the courts, but he must spend his political capital on fixing the courts. If he doesn’t, conservative judges will make it very hard for the Democrats to hold a legislative majority ever again.

Happily, there is a solution, and that solution is to expand the lower courts. The Constitution punts every decision about the lower courts (sometimes called the “inferior” courts) to Congress, including their size. Here’s the pertinent part of Article III of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That means Congress determines not only the number of judges on the lower courts but also which lower federal courts exist at all.

Congress has used this authority again and again throughout history to expand the federal judiciary. The most recent regional circuit it created, the 11th, was established in 1981. The Federal Circuit, which is the only appeals court defined by its subject matter (mostly patents and other trade issues) as opposed to its geographical region, was created in 1982.

Congress could create an entirely new appeals court devoted exclusively to voting rights challenges if it wanted to, and Biden could appoint all the new judges to such a court. Or Congress could create a new regional circuit or simply expand the number of judges on the current federal appeals and district courts. We are actually long overdue for such an expansion: Between 1961 and 1990, Congress added one or two judges to each of the circuits approximately every decade, as well as a number of new district court judges.

Historically, these lower court expansions were bipartisan. We are a litigious people; as the country grows in population, so does the number of lawsuits. Adding judges is just a thing we used to do to keep the judiciary running smoothly.

But since 1990, the US population has grown by a third. During the same period, the number of district court cases has grown by 38 percent and the number of cases involving a felony defendant by 60 percent. But the number of judges has not changed. A relatively modest proposal by the Judicial Conference, a group of veteran federal judges tasked with making policy recommendations about the health of the courts, suggests adding 70 new judges, 65 of them at the district court level. The judiciary needs more bodies.

As in the past, this issue doesn’t have to break down along partisan lines. The Idaho congressional delegation introduced legislation this January to split the Ninth Circuit (the largest federal circuit, which is responsible for nine states, ranging from California to Idaho to Hawaii, as well as Guam and the Northern Mariana Islands) into two circuits, thus creating a whole new federal court. The delegation also supports adding a new district judge for Idaho, which happens to be the fastest-growing state in the union.

To be sure, the Republicans who support this plan have Republican interests at heart. They believe that the Ninth Circuit is too liberal and that splitting it up is a way to create a brand-new conservative circuit in the long run. Still, in the near term, Idaho Republicans know that splitting the Ninth would allow Biden to appoint more federal judges, and they’re more or less willing to live with it because the good-government reasons for more federal judges are so strong.

Democrats should have dealt with this issue last decade. At the start of the Obama administration, Patrick Leahy, the Democratic senator from Vermont and then–Judiciary Committee chairman, introduced a bill to add more judges to the federal courts. Conservatives called it “court packing,” and the Obama administration, which never seemed willing to go to the mattresses over judicial appointments, didn’t take up the cause.

If Democrats don’t get this done now, while they still have a chance, Republicans most certainly will. Federalist Society chair Steven Calabresi has been pushing for conservatives to do this since at least 2017. In a National Review article from November of that year, Calabresi sounded like, well, me. He made exactly the same arguments at the start of Trump’s administration that I’m making now, at the start of Biden’s: “We believe our [court expansion] plan is necessary to deal with a caseload crisis in the federal courts, where caseloads have increased greatly since the last judgeship bill was passed in 1990. We also think the plan restores the partisan balance that was disturbed by past Democratic efforts. In 1978, President Jimmy Carter and a Democratic-led Congress passed a judgeship bill that increased the size of the lower federal courts by 33 percent. We propose that Republicans should do the same during this Congress.”

I told you federal court expansion was a bipartisan idea.

I absolutely believe that if Trump had won reelection and McConnell had hung onto the Senate, Republicans would be working on court expansion right now. There just aren’t a lot of vacancies left in the federal judiciary. Republicans can always find some casus belli for stacking the courts with conservative judges. The only question is whether Democrats will ever realize there’s a war, and they’re losing it.

In the meantime, whether the Democrats move to expand the courts or fail to use their power yet again, Biden must make his appointments count. He should be appointing a slate of progressive judges who will take the legal fight to conservatives, instead of endlessly seeking compromise with people who don’t believe fundamental fairness and human dignity are parts of the Constitution. And Biden’s nominees must be diverse. Trump’s judicial appointments were overwhelmingly male (76 percent) and blindingly white (84 percent). But that simply continues the well-established Republican practice of favoring white male judges. George W. Bush’s appointees were 78 percent male and 82 percent white. George H.W. Bush appointed a slate of judges who were 81 percent male and 90 percent white. And Ronald Reagan (the worst president Twitter’s never heard about) appointed a slate of judges who were 92 percent male and 94 percent white.

To balance out those decades of inequity, Biden’s judicial appointments shouldn’t “look like America”; they should overrepresent the kinds of Americans routinely excluded by Republican administrations. Balancing the courts should mean that white male cishet liberals need some extra qualification to get an appointment in this administration, like the ability to fly or a rec letter from King Solomon. You can’t balance a seesaw by standing in the middle when an elephant is sitting on one side.

On March 30, Biden announced his first slate of judicial appointments. The group of 11 includes three African American women as well as barrier-breaking Muslim American and Asian American nominees. That’s a fine start. Now we’ll just need 200 appointments at this level.

Diversity on the bench, however, should mean more than ethnic or gender diversity. Democratic administrations under Obama and Clinton tended to appoint people from the same professional class as Republicans: prosecutors and corporate lawyers who went to elite law schools.

There is some nuance here; prosecutors and corporate attorneys are not inherently bad judges. Indeed, many of the people who really want to be federal judges someday become prosecutors or corporate lawyers first because they’ve been told, accurately, that such jobs are the best way to position themselves for future judicial appointments. It’s unfair now to tell those people, especially the Black and brown people who have to have gold-plated résumés simply to be considered for nomination into the white boys’ club that is the federal judiciary, that their hard-won qualifications are suddenly a hindrance to professional advancement.

But as with the white guys, the benefits of judicial diversity outweigh the unfairness to any particular careerist. Biden’s nominees should be predominately plucked from classes of underrepresented legal professionals who are routinely ignored for consideration. It would obviously be nice to have more judges who come from a criminal defense background; the current setup, in which present-day prosecutors argue before former prosecutors in robes, tilts the courtroom against defendants in federal court. But it would also be nice to have judges who are former immigration attorneys and have actually represented a client seeking asylum. It would be nice to have a few judges who have cut their legal teeth working for public advocacy organizations like the ACLU, the NAACP, NARAL, or the Sierra Club.

Fortunately, the Democrats have a deep bench of potential nominees who fit these criteria. The Alliance for Justice began its Building the Bench project years ago, kick-starting the process of identifying and vetting potential Democratic nominees, including people from outside the traditional judicial pipelines. Other groups, like the American Constitution Society and Demand Justice, also have long lists of people ready to ascend to the federal courts. And many of the people touted for Supreme Court appointments could easily be appointed to courts of appeals while they wait for an opening on the highest court.

Unfortunately, it’s still an open question whether Republicans will allow Democrats to confirm their best picks for the lower courts. The astute reader will say, “Wait, didn’t the Republicans lose the Senate? Why should they have any say in whom Democrats appoint?” Well, as is so often the case, just because the Democrats have power doesn’t mean they’re committed to using it.

The problem is with something called blue slips. Traditionally, senators have been allowed essentially to veto potential nominees who would serve on a court in their state by returning a blue slip—a nonpublic objection to the nominee. The tradition enables just one senator to scuttle an entire nomination.

Blue slips are one way the federal courts in, say, Texas stay conservative even during a Democratic administration. They’re the reason the Idaho congressional delegation can call for additional federal judges for the state, even during the Biden administration: because thanks to the threat of this veto, even the Democrats nominated will be relatively conservative.

Republicans, of course, largely ignored the blue slip process for circuit appointments during the Trump administration. Some of the most odious Trump appointees, like Steven Menashi—the guy who helped Betsy DeVos organize an illegal loan-forgiveness program and who now sits on the Second Circuit, which covers New York and was thus in the blue slip jurisdiction of Senator Charles Schumer—could not have been confirmed if McConnell had honored the blue slip process. So he simply didn’t. That’s how Republicans roll when it comes to the courts: They try to win.

Democrats, in contrast, try to play by the rules—at least whatever rules the GOP hasn’t already thrown into the fire. McConnell did honor the blue slip process for district court appointments, so Dick Durbin, the newly installed chair of the Senate Judiciary Committee, has said that he too will honor them for the district courts. I’d like to imagine that after saying that, Durbin just went and handed McConnell his lunch money, to save McConnell the effort of shaking it out of him.

As a general rule, blue slips are like the filibuster: a tool that allows a single senator from the minority party to thwart the will of a popularly elected government. But Republicans have a specific incentive for keeping this antidemocratic tradition alive. Progressive or even moderate district court judges in red states might thwart the plans of Republican governors to deny women access to their constitutional rights. In swing states, these judges might stop Republican attempts to suppress the vote. Blue slips don’t just help the party that’s out of power; they also help the party that’s trying to pass laws out of step with the Constitution. California Governor Gavin Newsom isn’t passing laws preventing Republicans in Orange County from voting. But Florida Governor Ron DeSantis is trying to pass laws to make it harder for people in Miami to vote. If Florida Senators Marco Rubio and Rick Scott can blue-slip a few federal judges who might stop DeSantis’s Jim Crow policies, that’s a big win for them.

We don’t have statistics on how blue slips are used and whom they’re used against: They’re a nonpublic form of objection, and there’s no data on who would have been nominated for an opening beyond watercooler gossip. But I will bet all the money in my pocket that Republicans disproportionately use blue slips against women and people of color, and especially women of color. In fact, blue slips were invented by Mississippi Senator James Eastland, the “voice of the white South” (as if it needed one), to give segregationist senators a tool for blocking judges who would enforce desegregation. They are literally a Jim Crow idea.

Giving Republicans another tool to deny appointments to women of color without even having to publicly explain why seems like a privilege the party of white male supremacy should lose. Why should the Democrats continue to act as if Republican senators were operating in good faith when so many of them are clearly not? How is it even possible that people like Josh Hawley and Ted Cruz—last seen stoking actual insurrection and refusing to acknowledge the results of the presidential election—should still be allowed to exercise a one-man veto on judicial appointments? It’s not like NASA lets the Flat Earth Society choose the astronauts.

Whomever Biden nominates, the administration will have to stand strong behind them, supporting his candidates amid an inevitable onslaught of baseless and often bigoted attacks. As we saw, Republicans were only too eager to withhold bipartisanship from a number of Biden’s cabinet appointees who happen to be women of color. Deb Haaland and Neera Tanden faced considerable backlash from Republicans, as did Vanita Gupta and Kristen Clarke, two Biden Justice Department nominees who would themselves make fine federal judges. Republicans will not give an easy confirmation process to any Biden nominee outside the centrist white male pipeline, and Democrats are just going to have to ignore them and confirm all their nominees 50-50, with Harris breaking the tie, if need be.

Republicans do not get to choose Democratic nominees to the federal bench, just like a child throwing a temper tantrum does not get to choose what’s for dinner.

The House Judiciary Subcommittee on the federal courts held a hearing on expanding the courts in late February. Members of Congress heard testimony from sitting district court judges about the crisis on the federal docket. The judges testified that some of them were presiding over as many as 600 hearings per year.

We need more judges. Remarkably, even Republicans on the subcommittee agreed about that basic fact—but there was a catch. The ranking Republican, Darrell Issa, said that they would go along with a bill to expand the lower courts only if Democrats agreed to break up the Ninth Circuit and also agreed to stagger the appointments so that Biden wouldn’t get to choose all of the new judges. That’s right: The same party that rushed to confirm a Supreme Court justice after people had already started voting in the 2020 election now expects Biden to hold off on appointing some new judges for years, just in case Republicans are able to take back the White House in 2024. In other words, Republicans—who control neither chamber of Congress—are willing to help fix what they themselves admit is a crisis only if Democrats agree not to use the full measure of their power.

Issa’s proposal is flatly ridiculous. But I don’t blame him for asking. I always ask it to stop raining, just in case forces completely beyond my control are listening.

The Democrats have the facts on their side (the courts are overworked), the law on their side (adding judges is something Congress can do), and right on their side (diversifying the bench is a good thing to do). They also have power on their side (they control the House, the Senate, and the White House). The only thing Democrats don’t have is the will.

This is a backbone challenge—not just for the gelatinous Joe Manchin and Kyrsten Sinema but for the entire party. Can Democrats actually fix what everybody agrees is a problem, and in so doing help to secure their agenda? Or will they let Republicans dictate the rules of the game from their position of weakness? Will Democrats stand up for people of color and open up one of the most important bastions of white male power? Or will they fold and ignore the demands of the base that voted them into office? Will they do what’s right, or will they defeat themselves?

The time to answer these questions is already running out. The Democratic majority in the Senate hangs on the health of various aged senators who can be replaced by Republican governors. Passing legislation to expand the courts, and then confirming a slate of new judges before the 2022 midterm elections, requires a McConnell-like commitment to the cause, not the dithering that usually marks the Democratic caucus.

Securing the courts should be the number one priority for Democrats if they hope to be allowed to win future elections. It should be their number one priority if they want to enforce Covid regulations and provide financial assistance to those who have suffered during the pandemic. It should be their number one priority if they care about climate change or immigration or gun safety or LGBTQ rights or police brutality or corporate malfeasance or literally anything else.

Democrats have won power. What is required now is the strength to use it.

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