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Revised: September 22, 2020
Ruth Bader Ginsburg died last Friday.
Already, many are talking about adding new justices to the Supreme Court to overcome the political imbalance that is likely to occur when a new Justice is confirmed to fill her now vacant seat.
However, this article is not about the Supreme Court or the addition of new Justices.
Instead, I want to address two subordinate Federal courts — our system of District and Circuit (appellate) courts.
The judges on these courts are generally referred to as “Article III” judges to distinguish them from judges on Federal regulatory and administrative courts. Article III judges “hold their offices during good behaviour”. This effectively means they have lifetime appointments.
The membership of the Supreme Court gets most of our attention. Yet, during the 2017-2021 presidential term those lower courts have been packed with more than 200 questionable or highly biased appointees.
The District Courts handle all Federal trials. The Circuit courts handle all appeals aside from the tiny portion that is taken up by the Supreme Court.
The impact of the last four years of Federal judicial appointments is significant, amounting to 25% of all Article III judges.
And because those judges have lifetime appointments that impact could continue for years. Generations of new and existing voters could find their majority views and votes blocked and nullified by judicial decisions made by those judges.
How do we deal with this?
While the problem might seem hopeless, there are things we can do.
There are three basic approaches:
Restructure our system of District and Circuit courts so that the undesirable judges preside over empty courts and empty dockets.
Buy out the “employment contracts” of undesirable District and Circuit court judges. In other words we strongly incentivize judges to retire early.
Impeachment - Individual judges could be impeached and removed from office one at a time. But most Federal judges, even the ones we do not want, are decent people; we should strive to repair our system without impugning their personal integrity or ethics. I do not advocate mass impeachments and won’t be discussing this further.
Restructuring and Re-establishing Federal District and Circuit Courts
Our Federal judicial system is established by Article III of the United States Constitution Of particular interest to our discussion are sections 1 and 2. (I’ve emphasized the parts that are relevant to the present discussion.)
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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2 (in part):
… In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The Constitution defines only the Supreme Court.
All of the lower court structure, and jurisdiction, are established by Congress through statutes.
Congress can change things around, and has done so over the years. Of course, statutory enactments by Congress require a Presidential signature, or else an override of a Presidential veto.
So, to be clear, it is fully within the power and authority of Congress to establish new Federal courts subordinate to the Supreme Court, as well as to eliminate existing ones. Likewise, it is within the power and authority of Congress to alter the jurisdiction and regulations regarding those subordinate courts.
Thus, Congress may establish a new hierarchy of courts that mirror the shape of the existing District and Circuit/Appellate Federal courts. And Congress may change the jurisdictional rules so that most new cases and new appeals go to those new courts.
(It is probably desirable to leave some residual substantive work for the old courts and their judges to forestall any complaint that violates the Constitutional requirement that they “hold their offices during good behaviour”.)
So who would be the judges of these new courts?
Desirable judges from the old system could be transferred to the new courts through the standard machinery of a Presidential nomination and a Senate confirmation. Vacancies would be filled the same way.
Undesirable judges would be left sitting in the old courts. They would retain their judicial titles and continue to collect their salaries and benefits. But as these judges leave office, their positions could be left unfilled.
This approach is not unusual. It resembles a method used by some school systems to remove troublesome, but tenured, teachers. Unwanted teachers end up in classrooms without students, so-called “rubber rooms.” Those teachers remain employed; they retain their titles, tenure, salary, and benefits; but they have no contact with students.
This transition of courts and judges could be done fairly painlessly. The new courts could move into the existing buildings and adopt the existing rules and procedures (and staff). The judges who are not transferred to the new system could be moved to relatively inexpensive office spaces in the suburbs.
The largest cost would be paying salary and benefits to the old judges for the rest of their lives.
Buying Out the Terms of Sitting Federal Judges
This section builds upon my 2007 piece “DeBushification of the judiciary - The early retirement bonus plan”
Private industry and universities have long used the incentive of early retirement bonuses as a way to avoid layoffs. The employer usually offers employees a substantial bonus — sometimes several years of normal salary — if they voluntarily terminate their employment or retire.
Congress could use that same approach to encourage Federal judges to give up their seats and create openings for new judges.
For example, Congress could offer all Federal District and Circuit court judges a highly attractive early retirement incentive.
These incentives could be millions of dollars (perhaps tax free.) To pay for this we might have to forego a few F-35 aircraft or cease building “the wall”. Or private contributions might be earmarked to pay some of the cost.
No judge would be required to accept an offer. The offer should remain on the table even if not immediately accepted, although the amount of the offer should decrease over time in order to incentivize acceptance earlier rather than later.
The dominant cost of our Federal judicial system is salary for judges and staff. The proposals here affect only the judges.
How many judges are we talking about? According to Wikepedia:
There are currently 870 authorized Article III judgeships: nine on the Supreme Court, 179 on the courts of appeals, 673 for the district courts and nine on the Court of International Trade.
So, the total number of circuit and district court judges is 852. Trump has appointed 53 circuit court judges and 161 district court judges for a total of 214.
We can make a very rough estimate: Each of these two approaches will cost approximately the yearly judicial salary of each affected judge summed through his or her remaining life expectancy.
Federal judges receive yearly compensation of between about $211,000 and $271,000 per year. (https://www.uscourts.gov/judges-judgeships/judicial-compensation) If we use an average of $250,000/year, the total salary of Trump-appointed judges is about $53 million per year. That is quite a bit less than the cost of a single F-35 aircraft (~$79 million), of which the US is planning to buy nearly 2,500 (~$197.5 billion).
If we estimate the life expectancy of those judges to be twenty-five years then we are looking at an expense that is significantly less than the purchase of one F-35 every year through 2045.
In other words, the cost of these proposals is a nearly invisible footnote to the entire Federal budget. The yearly cost of these proposals is far less than the daily amount the Federal government pays in interest on our national debt. (“5 facts about the national debt”)
These proposals have other costs — such as perhaps some office space rental and some support staff. But those costs are relatively small and negligible.
Circuit and District court judges make up only a portion of all Federal judges. However, we can ignore the non “Article III” judges, who occupy regulatory and other specialized courts. They do not have lifetime terms; there will be opportunities to consider whether to renew or replace them soon enough without any further special action.
So what can you do?
First let’s take a breath. There are means to deal with the lifetime appointments to the Federal Circuit and District courts. These are extraordinary means, but they are means that are fully and legitimately within the powers of Congress.
There will be objections. We can anticipate the now routine concern about “What happens when the other side comes to power?” In normal times that would be a legitimate concern. But these are not normal times. These days the bid for power is not a bid for a limited term of years but a bid for power that will last lifetimes. Unless we act soon the concrete of the Trump appointments will harden and cure into judicial conservatism, a new Lochner era, that is likely to persist for decades, if not the rest of our lives.
After we recognize that there are things that can be done, we must:
Develop these proposals into concrete and specific legislative bills.
Build public advocacy for these proposals.
And finally, we must prevail upon our Congressional representatives, in both the House and Senate, to act with celerity upon these proposals.