In a fair 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 judges and more than four dozen appeals court judges – 245 judges total, more than other newer presidents in their first term.
They have a lifelong tenure and are, by and large, relatively young. Seventy-six percent were men; 84 percent were white. And for the most part they are strictly conservative. So the effects on federal courts will be significant and stretch for decades.
After the Democrats regain the White House and control of the Senate, the party must seize its opportunity and focus on appointing and approving judges. This is especially urgent as they have a single vote in control of the Senate and it is unclear whether they can stay in control after the midterm elections.
To that end, Judge Stephen Breyer should seriously consider resigning from the Supreme Court in July 2021 at the end of the court’s current tenure. Judge Breyer turns 83 in August and has served as a judge since President Bill Clinton’s appointment in 1994. He should give President Biden the option to replace him while the Senate is in Democratic hands.
The new Senate majority leader, Chuck Schumer, of New York, must be at least as aggressive as his Republican predecessor, Mitch McConnell of Kentucky, in efforts to reshape the judiciary. And Senator McConnell was very aggressive. As former chief of staff Josh Holmes put it, “McConnell knows this is the most important thing you can do from a legacy perspective and from a center-right American perspective.”
The unfortunate fact is that Democrats have not always made appointments to judges a priority. Mr. Clinton took office in January 1993 with many vacant judicial posts. Two years later, when the Republicans took control of the Senate, many of these posts remained open. President Barack Obama was also slow to appoint judges.
The Democrats should increase the number of judges in the district court and the appeals court. Aside from restoring ideological balance in the federal courts, this surge is completely overdue. The last significant expansion of federal justice was in 1990, when the Civil Justice Reform Act created 11 new county courts, 61 new county courts, and 13 temporary county courts. The number of court records has increased significantly since the last few federal judges were created. As a result, our courts were in crisis. From 1990 to the end of 2018, the number of files in appeals courts increased by 15 percent and in district courts by 39 percent.
For example, in the eastern district of California, which covers the Central Valley as far as Sacramento, no new judicial posts have been created in more than 40 years, even though the population of that district has grown by more than 5.5 million people. Even before the effects of the pandemic, waiting times for civil trials in the eastern district of California were nearing five years, and for average citizens seeking relief, there appears to be little or no chance of ever solving their cases.
It can be nearly impossible for people to try their cases in many federal courts as there are an enormous number of cases. In many cases, district judges no longer have time to conduct verbal disputes. Parties to the litigation are often told that they may want to consider other avenues, such as arbitration. Those with deep pockets may wait or pay for arbitrators to settle disputes privately, but for most Americans the current situation is a major obstacle to ever obtaining justice.
Federal judges who are eligible for senior status should also adopt it. These judges can continue to handle cases, helping to increase the capacity of the federal judiciary. By adopting senior status, however, they would also open their seats and give the Democrats the opportunity to replace them. During the Obama presidency, some liberal appeals court justices refused to assume higher status when possible. By the time they finally left the bank, it was too late for Democrats because Republicans had taken control of the Senate. President Donald Trump appointed Conservatives to take their place.
The importance of the federal courts should not be underestimated. Law enforcement, civil rights suits, copyright and antitrust matters, claims to religious freedom, and myriad other matters flow through these chambers. Federal courts also deal with some of the most pressing issues of our time. They are the ultimate protection against abuse by other branches of government.
Democrats must hurry and follow the example of their Republican counterparts in making federal justice their urgent priority.
Erwin Chemerinsky is the Dean of the Law School at the University of California at Berkeley. Most recently he was the author of The Religion Clauses: The Case for the Separation of Church and State ”with Howard Gillman.
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