Contributor, The Volokh Conspiracy

Progressive legal scholars and commentators have been harshly critical of a proposal by Northwestern law professor Steven Calabresi and attorney Shams Hirji to expand the federal judiciary in order to address rising caseloads and “undo the judicial legacy of President Barack Obama.” Interestingly enough, this proposal has generally drawn criticism from the political right as well, including Josh Blackman and my co-blogger Ilya Somin.

This week, the Honorable William Pryor of the U.S. Court of Appeals for the 11th Circuit added his voice to those against the proposal. In a New York Times op-ed, Judge Pryor writes:

The judicial conference regularly monitors caseloads and surveys courts about needs for new judgeships. If judges were overworked and cutting corners, they would undoubtedly ask Congress for more help beyond filling vacancies and the addition of a modest number of judgeships requested annually. If federal courts were suffering a caseload crisis, there would be nothing attractive about being a federal judge, and judges would be departing in droves. And they’re not.

It also makes no sense to expand lower federal courts to serve a political agenda. Although presidents of different parties have appointed federal judges, circuit courts regularly decide appeals unanimously in more than 95 percent of cases and affirm a vast majority of district-court rulings. One hallmark of the federal judiciary is that it proves its devotion to the rule of law by resolving most of its cases without any political disagreement. Judicial philosophy matters in a small percentage, but the size of the judiciary has little to do with it.

I have long admired Professor Calabresi. But his proposal to create hundreds of new federal judgeships should be opposed.

For what it’s worth, Pryor was a George W. Bush nominee who was initially filibustered by Senate Democrats — and opposed by the NYT editorial page — because of his outspoken conservative political views. (He was also responsible for removing then-Chief Justice Roy Moore from the Alabama Supreme Court for defying a federal court order, the first time.)

As for my own view, while I agree that Senate Democrats have often behaved badly with regard to judicial nominations, it’s not as if Senate Republicans have not responded in kind.  More importantly, finding new ways to maximize partisan influence on the federal judiciary will only make things worse (and likely encourage retaliatory efforts).

Decisions to expand the federal courts should be based upon a demonstrated need for more judges based upon caseloads and related factors. Further, when new judicial seats are called for, they should not be added in a fashion calculated to maximize partisan advantage. So, for instance, the best approach would be to adopt legislation creating new judgeships after an intervening election. If, for instance, it was determined that there needed to be an additional 60 judges on various courts, the best course would be to propose a bill that would create 20 new seats each in January of the next three odd-numbered years so that there would be 20 new seats after each intervening election. This would enable to the Senate to discharge its obligation to keep the courts functioning while minimizing concerns about partisan court-packing.

As for the proposal to replace many administrative law judges in federal regulatory agencies with Article III judges, I am sympathetic to this idea. Here again, however, I think the best approach is to determine how many judges would be necessary for this, and then to stagger the creation of the relevant seats in the manner described above.

It’s certainly fair to note that Senate Democrats have engaged in opportunistic efforts to influence the federal courts, including “stealing” seats by holding them open for months prior to an election (as was done to Judith Richards Hope and Lillian BeVier to the U.S. Courts of Appeals for the 4th and D.C. Circuits, respectively, among others). Yet just as an-eye-for-an-eye leaves everyone blind, partisan retaliation for past bad acts unduly politicizes and undermines the federal judiciary. Like Pryor, I have tremendous respect and admiration for Calabresi, but I do not support this proposal.