Da – Court Packing Notes



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Court Packing DA
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DA – Court Packing

Notes


This disadvantage says that there is an effort among conservative activists to massively expand the size of the federal judiciary. Under the plan, the number of appellate justices would triple and Trump would be able to appoint as many judges as all other presidents combined, undoing the judicial legacy of Obama. Currently, there are not enough Republican Senators behind the court packing scheme, as many see it as an overreach. If the Supreme Court were to abolish the death penalty, however, that would help build support by playing into the idea that the judiciary is too liberal and hostile to conservative values. This matters because lower appellate courts rule on climate litigation. Liberal rulings are necessary to ensure that the Clean Power Plan and other environmental regulations are enforced. Without them, our ability to adapt to global warming is severely compromised.

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First is uniqueness. Republican members of Congress are hesitant to pack the court, or appoint more conservative justices, because they see no need to do so.


Rosenberg ’17 [Paul; December 3; Columnist, citing political analysts; Salon, “GOP's court-packing spree: It's only the beginning,” https://www.salon.com/2017/12/03/gops-court-packing-spree-its-only-the-beginning/; RP]
But if one leading conservative judicial activist gets his way, that will only be the beginning. Federalist Society founder and board chair Steven Calabresi has written a memo (along with recent graduate Shams Hirji) calling on congressional Republicans to massively expand the lower federal courts, a court-packing scheme of breathtaking proportions for the express purpose of “undoing the judicial legacy of President Barack Obama.” This would actually giving Trump the power to appoint far more judges than any president in recent history — and do it before the 2018 midterms.
How many judges, exactly? Calabresi has his eye on three distinct categories. First, he’d like to double or perhaps triple the number of appeals court (i.e., circuit court) judges, who are second only in power to the Supreme Court. Trump could then appoint at least as many appeals court judges as all other presidents combined. Second, he wants to add 185 trial (district court) judgeships, which would bring Trump’s appointments to 40 percent of the total. Third, he’d like to replace 158 nonpartisan, agency-appointed administrative law judges (ALJs) with Trump-appointed judges with lifetime tenure. These come from 20 different executive branch regulatory agencies —the EPA, FCC, SEC, etc. — but almost half come from just two: the Department of Labor (41) and the National Labor Relations Board (34), both of which look out for the rights of workers, whom Trump has a long history of exploiting. Allowing this president to appoint these judges would be a classic case of the fox guarding the henhouse.
Calabresi realizes he’s asking for a lot, so he also presents a more modest fallback position. Even that one would allow Trump to exceed Obama’s influence in just one-fourth the time in office. Lest you think he’s going soft, Calabresi has also proposed that Republicans pass his proposal as part of the GOP tax plan — something that still could happen through the conference process.
Needless to say, the plan has drawn some sharp criticism, including high-profile pieces by Ronald Klain at the Washington Post and Linda Greenhouse at the New York Times, who carefully picks apart the claims of a judicial emergency (which Republicans, of course, ignored when Obama was in office). Calabresi and Hirji fired back in a National Review article, claiming: “Nothing could be further from the truth” than to call it a court-packing plan. “In fact, it is a court-unpacking plan.” The Democrats started it, you see. They’re the real court-packers.
Even some fellow conservatives aren’t buying this plan or its rationale. "As a member of the Federalist Society who often speaks at its events, I can write in complete candor that this proposal is ill-considered and should be discarded," Josh Blackman wrote at the National Review. Libertarian Ilya Somin wrote at the Post's Volokh Conspiracy blog that Calabresi and Hirji "clearly state that one of their goals is 'undoing President Barack Obama’s Judicial Legacy.' Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.”
But perhaps the best way to understand the plan is through the eyes of Richard Primus, of the University of Michigan Law School, who wrote a recent post at the Harvard Law Review blog titled “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” At least the proposal is honest, he writes. “The paper’s motivation is entirely out in the open. This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control. It comes as a wolf.” He seeks to elucidate both why and how this is so profoundly dangerous to America’s constitutional system.
Primus' terminology is important: "Rulebooks" and "playgrounds" refer to different ways of understanding the Constitution. The "endgame" here, he writes, suggests "a kind of constitutional Armageddon." This proposal means "to end an era,” but not necessarily in the way that Calabresi and Hirji suppose.
“The document is remarkable in at least two respects,” Primus begins. “First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution. If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.” The relationship between the formal big-C Constitution and the informal small-c constitution is crucial, Primus notes: “The big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.”
There are two ways of understanding the Constitution, Primus says at the end of his analysis. One is as a rulebook: “As long as you stay within the permitted moves, you’re playing the game properly.” In this view, there is no little-c constitution at all.
“But the rulebook approach is a dangerously inadequate way to think about constitutional law,” he warns. “A more helpful analogy might go like this: Constitutional government is like playground basketball. If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.” As he sees it, that is the danger the Calabresi-Hirji proposal holds. However “conservative” they might claim to be, these legal activists are actually lighting a fuse that could blow up the whole constitutional system.
The reason they might do that brings us to the second remarkable thing Primus notes:

Next is the link. High profile, liberal rulings like the affirmative incentivize Congressional republicans to pack the court.



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