Bloomberg Law
Dec. 7, 2020, 9:51 AMUpdated: Dec. 7, 2020, 9:35 PM

Liberals Push Congress for ‘Robust’ Lower Court Expansion (2)

Madison Alder
Madison Alder

Two dozen progressive organizations want Congress to expand the lower courts beyond what the federal judiciary itself has recommended.

The groups sent a letter Monday to Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) and the panel’s top Democrat, Dianne Feinstein (D-Calif.), calling for “a more robust approach” to additional judgeships that reflects rising caseloads.

Major unions like the National Educational Association and Service Employees International Union are among the cross-section of the left that signed the letter shared with Bloomberg Law that suggests lower court expansion could be a focus for liberals.

“Without an efficient court system, Americans struggle to enforce everything ranging from workplace protections to immigrant rights,” said Christopher Kang, chief counsel for progressive advocacy group Demand Justice.

“The broad coalition supporting a dramatic expansion of judgeships is a testament to how many rights are at stake if Congress does not act to expand the district and circuit courts,” Kang said.

Getting a lower court expansion enacted could prove difficult should Republicans retain control of the Senate or Democrats eek out a narrow majority.

Democrats didn’t do themselves any favors with pre-election talk of Supreme Court expansion that may have alienated Republicans they’ll need to enact an expansion bill, said Lauren Bell, a political science professor and dean at Randolph-Macon College, who has studied judicial nominations.

“I don’t see it happening immediately because people will conflate it with that push in the last few months for Supreme Court expansion,” Bell said.

A Bigger Ask

The most recent request by the Judicial Conference, the policy arm of the federal judiciary, asks Congress to add five appeals court judges for the San Francisco-based U.S. Court of Appeals for the Ninth Circuit and 65 federal trial court judges. It also wants eight temporary district court judgeships made permanent.

Congress hasn’t passed comprehensive legislation to add seats to the federal judiciary since 1990.

The letter doesn’t include specifics about the size of the request or the method of when the judgeships would become available for the president to fill. Demand Justice spokesman Colin Diersing said the organization is talking to experts about details.

But the letter suggests the groups would support at least a 12% increase in the size of the federal judiciary. The Judicial Conference request is only an 8% increase.

“From 1960 to 1990, Congress passed six comprehensive judgeship bills — each one increasing the size of the judiciary by at least 12 percent, with no more than eight years between laws. Our current, 30-year period of inattention requires a much greater response,” the letter said.

Laura M. Flegel, legislative and public policy director for the National Employment Lawyers Association, said her orgnaization signed the letter because court expansion is critical for workers rights.

“Delay serves the interests of employers but is often crushing for a worker who is trying to survive without wages after being wrongfully terminated, facing harassment on the job, or trying to work without accommodations for a disability, among other issues,” Flegel said in a statement.

In the letter, the groups say failing to expand the judiciary has led to defendants facing delayed trials to seek plea agreements and created hurdles for litigants such as civil rights plaintiffs in employment disputes out of court.

“Our courts cannot provide the efficient administration of justice in this country without a sufficient number of judges to adequately serve the American people,” the letter said.

Bipartisan Interest

The support for lower court expansion comes after an election campaign in which progressives had pressed to add seats to the Supreme Court where the ideological balance shifted 6-3 in favor of conservatives following the death of Ruth Bader Ginsburg and Amy Coney Barrett’s quick confirmation.

President-elect Joe Biden has shown little enthusiasm for expanding the number of justices. On the 2020 campaign trail he was opposed to court-packing, but after Ginsburg’s death and pressure from progressives on court expansion, he said he’d develop a bipartisan commission to study court reform.

Adding lower court judges is a more feasible route to reshaping the courts, although potentially more complicated for Democrats if Republicans retain control of the Senate.

But lower court expansion has attracted some interest from both Republicans and Democrats. At a Senate Judiciary Committee hearing in June, Graham suggested a package could be part of a pandemic relief bill and Feinstein agreed, though that relief legislation has yet to materialize.

In October, Sen. Todd Young (R-Ind.) introduced a bill that would give the judiciary the district court judgeships it asked for and spread out appointments over the next two presidential administrations. His bill did not, however, include the new judgeships the judiciary requested for the Ninth Circuit, a large and historically liberal-leaning circuit.

Difficult Negotiation

Adding some judgeships is a possibility, but probably not on the scale sought be the progressive groups, say judicial nominations watchers.

“This is court-packing,” Thomas Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies at the conservative Heritage Foundation and senior legal fellow.

Jipping said the call for more judgeships echoes President Franklin Delano Roosevelt’s famous court-packing attempt in 1937 that attracted bipartisan opposition. That bill, often cited for its proposal to add seats to the Supreme Court, would’ve also added lower court seats.

“The only thing that has any potential is a much more specific, targeted look at individual courts,” Jipping said.

Justin Wedeking, a professor of political science at the University of Kentucky who has studied judicial nominations, said much could depend on how the new seats are distributed over time rather than frontloading them early in President Joe Biden’s tenure.

“What makes a plan likely to happen is that there be some sort of structuring of new judgeships to be levied out in the future,” Wedeking said. “That probably wouldn’t start until after the next election.”

In such a plan, seats could become available for the president to fill two to six years down the road, Wedeking said.

“Right now, with the polarized political atmosphere, you need some deal to take place,” Wedeking.

(Updates with comment from National Employment Lawyers Association.)

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