The GOP Has Made the Courts A Political Battleground. Like It Or Not, Democrats Need to Fight There to Win

April 21, 2021

By Joe Rothstein

President Biden is under heavy fire from progressive Democrats for ducking the question of whether to add four justices to the Supreme Court. But Biden appears to be on firm ground with the public on that issue. A recent Reuters/Ipsos poll shows that only 38% would favor adding justices. House Speaker Nancy Pelosi also tossed a bucket of cold water on the embers of that idea.

Increasing the number of justices, though, isn’t the only way to combat the Republicans’ court packing efforts. According to that poll, while the public is leery of expanding the Supreme Court, two-thirds of the respondents would favor ending lifetime tenure. Another way to unpack the court would be to rotate justices off the high court after a fixed number of years and have them serve on lower courts. Presumably, Biden’s commission will hear public testimony on all these suggestions and more. Democrats can't be timid about addressing them.

But the Supreme Court isn’t the only venue the political right hopes to use for miring a progressive agenda. During the Trump years they also rushed through to confirmation 226 right-wing lower court judges, many of them considered unqualified by the American Bar Association.

Every one of those new district court judges has the power to block implementation of a federal law. That means it’s all too likely that right wing groups will judge-shop for friendly faces on the bench to halt whatever Biden and a Democratic Congress enact to protect the environment, pass gun safety legislation, or override state GOP-driven voter suppression laws, among others. Thanks to Mitch McConnell and Trump, right wing radicals now have 174 new district court judges to pick from. McConnell and Trump also saw to it that 54 new appeals court judges would be on the bench waiting to affirm those lower court rulings.

All this before a case even gets to the 6-3 Republican-appointed Supreme Court.

Elie Mystal, justice correspondent for The Nation, has a chilling essay, “Can Biden Fix The Courts?” in the current edition of the magazine. He makes a persuasive case for the Democrats to play hardball while they have the White House and control of both houses of Congress. Otherwise, with the GOP hell-bent on suppressing Democratic votes, and their allies in robes to back them up, Democrats could be shut out of ever seeing majority control again. The conservative Supreme Court already has green-lighted GOP apportionment maps, giving them a huge advantage for control of the House.

So, what can be done?

For one thing, one really big thing, Mystal suggests “Congress could create an entirely new appeals court devoted exclusively to voting rights challenges, and Biden could appoint all new judges to such a court.” Or, Mystal says, “Congress could simply expand the number of judges on the federal appeals and district courts.” Congress has broad authority to do that. Adding judges to lower courts risks little public backlash. Neither would the creation of a whole new court to address voting rights cases.

In fact, the Judicial Conference, the panel of judges that sets administrative policy for the courts, already has suggested adding 77 district judgeships to meet current caseloads. At a House hearing in February, sitting district judges testified that some were presiding over as many as 600 cases a year.

Trump was able to fill an unprecedented number of vacancies because Mitch McConnell slow-walked so many of President Obama’s choices and abused the long-standing practice of giving home state senators, regardless of political party, a secret quasi-veto power over district court judicial nominations. That practice was in place to add an apolitical hurdle for judgeship appointments.

Without ending that system, Democrats could force Republicans to make their opposition to a nominee public and to state their reasons why. Democrats could also place deadlines on Republicans' right to object, to prevent a repeat of the road block McConnell constructed during the Obama years.

In 7 of the past 8 presidential elections, the public has given the Democratic candidate more votes than the Republican. Yet 6 of the 9 sitting Supreme Court justices were nominated by Republican presidents. Because of Republican determination to pack the courts, they were successful in confirming as many new lower court judges in Trump's 4 years as Obama did in 8. Because progressive legislation must run the gauntlet of right-wing court challenges (see Affordable Care Act), electing Democratic presidents and congressional majorities won’t result in real progressive change until Democrats can restore balance to the court system.

We won’t know for months whether Biden’s commission will create a club for political action or a fig leaf to avoid hard decisions. But that’s not the Democrats’ only option for achieving a more balanced court. There’s much that Congress can do other than adding four new Supreme Court justices, and they need to get on with it.

(Joe Rothstein is a veteran political strategist and author of the acclaimed political thrillers “The Latina President and The Conspiracy to Destroy Her,” and “The Salvation Project.” He can be contacted at [email protected]).