After leaving the judiciary dangerously understaffed for eight years — up to and including blocking a judicial nominee until she died — the Republicans have decided this is their Federalist Party moment and are going to ram through as many judges as they can. This is generally seen as the province of the Senate, with its unique role in approving judicial nominees, but the Republican-led House of Representatives wants to play too and have come up with their own contribution to locking in the authority of their minority government for generations to come with a new bill from Darrell “BENGHAZI” Issa creating a whopping 52 more federal judgeships for Trump to fill on top of the over 100 he inherited that they’ve disingenuously whined about because they assume the American people are stupid and, it turns out, many of them are.
The ingenuity they show in devising new and more creative abuses of power is laudable.
In fairness, the judiciary has needed these additional judgeships for years. But when the black guy was president, this was dismissed as unnecessary government expansion. That was then and this is now and principles are just fig leaves, so the House is quivering with excitement to give the Senate even more judges to vote on.
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While one could comfort themselves in the knowledge that all 52 of these openings would be district judgeships and the more consequential appellate courts aren’t set to receive a one-off hot MAGA injection, district courts do still matter and the veritable children they’ll stuff in these seats will become the farm team for the circuit court vacancies of tomorrow.
It’s unfortunate that this bill is wrapped up in a naked power grab, because it also contains a number of important provisions. The fine folks at Fix the Court have zeroed in on some of the most important provisions:
Broadcast access:
The bill would require the Supreme Court to implement same-day audio within a year (cf., this Grassley-Leahy letter) and live audio within two. All U.S. courts of appeals currently release audio within 24 hours of an argument, but the high court has only allowed same-day audio 27 times in its history. The bill would also require livestreamed video for appellate (non-SCOTUS) arguments; only the Second, Third and Ninth Circuits have ever allowed video, with the Seventh expected to add video capacity this fall.Recusal explanations:
The bill also would require Supreme Court to release a “timely notice” online each time a justice is recused from a petition or argument that would include “an explanation for such recusal.” More than 100 years ago, the high court did periodically offer recusal explanations, usually due to a justice’s absence, but that practice ended in 1904. This new provision would help the public understand the justices’ conflicts of interest and would end the wild conflicts-based goose chase court-watchers engage in each week when orders are released.****
Code of conduct:
In each of the last four Congresses, Democrats in the House and Senate have introduced bills that would require the justices to adopt a formal code of conduct, one that would likely mirror the Code of Conduct for U.S. Judges that the rest of the federal judiciary follows and to which the justices are not bound. Today’s bill marks the first time a GOP-led bill called for the justices and lower federal judges to be bound by the same ethical code.
Transparency is good, and finally addressing the Supreme Court’s cartoonish lack of any meaningful ethical rules is a welcome change. But all this transparency talk is just lipstick on this pig of a power grab. Speaking of being transparent, the bill also includes mandatory physicals for federal jurists to ensure they’re functioning at peak physical and mental capacity, which is so obviously legislative libel of Ruth Bader Ginsburg that it’s not even funny.
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In an effort to preserve the more important provisions from Democratic opposition — as little as that matters — Fix the Court has spoken with House staffers about the possibility of phasing in the new judges rather than creating 52 openings overnight.
As I’ve said before, norms can never be established by sliding along the established spectrum. When Democrats try, inevitably, to say “let’s cut down the number of new judges” or “let’s slow down the pace in this bill” it just ratifies the power grab. It’s the apocryphal Churchill joke where we’re just haggling over the price. Only thinking outside that lane can possibly put pressure on Republican lawmakers. The ratification of the 27th Amendment is a testament to what can be accomplished when you depart from the “yes pay raise, no pay raise” spectrum and come at a challenge from a different direction.
In a country that went so far as to amend the Constitution to prevent Congress from instituting a pay increase until the next session, why not require new judicial openings wait until the next presidential term? If elections are supposed to have consequences (unless it’s the 2012 election, apparently) then set it up with a bunch of new judges on the line. That’s at least got a chance of playing to the ego of people who assume they’ll still be in charge in 2021. Everything else is just surrender.
(Read H.R. 6755 on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.