June 19, 2021
I (P. J. O’Rourke) take the greatest pleasure in introducing Ilya Shapiro and the brilliant piece he has written for American Consequences. Ilya’s article brings us deep insight into what the Biden administration will (and won’t) be able to do to America’s judiciary. And Ilya also provides us with a sound philosophical basis to argue against letting judges have the last say on questions that ought to be decided by the American people themselves.
Ilya is a man of almost too many credentials to list. He is a vice president of that most esteemed libertarian think tank, the Cato Institute, director of Cato’s Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.
Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues (now that was a job) and practiced at the white-shoe law firms, Patton Boggs and Cleary Gottlieb.
Ilya is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020) and co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014).
He’s written for the Wall Street Journal, the Harvard Journal of Law & Public Policy, the Washington Post, the Los Angeles Times, USA Today, National Review, and Newsweek. And he has filed more than 400 (!) amicus curiae “friend of the court” briefs in the Supreme Court.
Every one of those briefs has been in defense of individual liberty and freedom of expression. Ilya has been a very good friend of the court. And now he is a very good friend of ours.
On Judicial Appointments… Is Joe Just Biden His Time?
The most lasting impact of the incredible roller coaster that was the Trump administration is on the judiciary. His tax cuts are being reversed – raising taxes is infrastructure? – and the new administration hasn’t met a regulatory reform it won’t rescind… but federal judges are for life. Long after we learn (or not) what actually happened on January 6, or find out whether The Donald will ever return to Twitter, the youthful originalists our 45th president put on the bench will still be granting writs.
But that’s one of the least surprising things about the last four years because judicial appointments tend to be every president’s biggest legacy, at least in domestic affairs. That’s why now is a good time to look at President Joe Biden’s terrible, horrible, no good, very bad record of judicial battles, and his initial actions as chief executive, to see what this presidency portends in this key area.
Although ol’ Scranton Joe presents himself as a glad-handing moderate, on judges he’s been a bare-knuckle partisan. The only Republican Supreme Court nominees he voted for during a Senate career that began in 1973 were those confirmed unanimously – plus David Souter, who was confirmed 90-9. He even voted against John Roberts, whom half of the Senate Democrats voted for, and joined the attempted filibuster of Samuel Alito.
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Biden actually chaired the Judiciary Committee during the Robert Bork and Clarence Thomas sagas. His sustained attacks on the former contributed as much to Bork’s defeat as Ted Kennedy’s demagoguery, while he attacked the latter for being too protective of individual rights and made his hearings into what Thomas called a “high-tech lynching” – and two years ago called Anita Hill to apologize for not doing more for her cause.
Then, as the clock wound down on the George H.W. Bush presidency, Biden gave a speech urging him not to fill any high court vacancies arising before the 1992 election. He would awkwardly walk back that speech in 2016, leading to debate over the “Biden rule.”
In his last presidential run, Biden said he’d appoint judges who favor a “living” Constitution but declined to release a list of potential nominees because he knew they wouldn’t be popular. Biden also pledged to put a black woman on the Supreme Court, which rather narrows the pool of plausible candidates because there are exactly four black, female federal circuit judges, the youngest of whom is pushing 70. That’s no doubt why his first three circuit nominees (and four of six total) are black women, notably Ketanji Brown Jackson, a 50‐year‐old federal judge who was just promoted to Attorney General Merrick Garland’s old seat on the D.C. Circuit – basically the judiciary’s AAA level.
Further, of Biden’s judicial nominations so far, there’s not a single white man. That too shouldn’t be surprising, because Democratic presidents have long focused on “diversity” (even if it wasn’t always called that). As Jimmy Carter said in 1978, “If I didn’t have to get Senate confirmation of appointees, I could tell you flatly that 12% of my judicial appointments would be black and 3% would be Spanish‐speaking, and 40% would be women, and so forth.” Seeing how Barack Obama was foiled in his attempt to appoint more racial minorities by American Bar Association (“ABA”) warnings that many candidates weren’t qualified, Biden ended the group’s pre‐screening role.
One underreported benefit of ending ABA pre-screening is the freedom to nominate more public defenders, criminal-defense attorneys, JAGs, and other lawyers with nontraditional backgrounds, a long‐overdue move. Indeed, a byproduct of Democrats’ delicate search for both diversity and quality is that many appointees (of all skin tones) have been either prosecutors or corporate lawyers – not exactly the progressive avatars that the party’s base demands.
Moreover, given that the legal profession has a leftward tilt, Democratic presidents have more room for error than their Republican counterparts, with or without ABA approval. They can afford to focus on identity rather than ideology. The reason President Trump didn’t appoint many black female judges wasn’t misogyny or racism, but that there just aren’t many black female judges who want “deconstruction of the administrative state.”
The lower courts are where the action is – the Supreme Court hears fewer than 70 cases a year, compared with the 50,000 that don’t make it to the big show. Every four‐year term, the president gives life tenure to about a fifth of all federal judges, while Trump’s 234 put him at more than a quarter. Then-Senate Majority Leader Mitch McConnell’s confirmation machine left only 46 vacancies by Inauguration Day. Even after the first batch of Biden confirmations, that’s now grown to about 80, with nearly 30 announced future vacancies (including judges who will retire upon their successors’ confirmation).
That’s still significantly fewer opportunities than Trump had at this point, so Biden will be hard-pressed to match his immediate predecessor – who was second all‐time for a single term after Carter, for whom Congress created scores of new judgeships to shake him out of his malaise for not having any Supreme Court vacancies.
In short, Biden’s judicial impact will be less than one may normally expect, and much less than his erstwhile running mate. When Obama took office, only one of the 13 federal circuits had a majority of Democratic-appointed judges. When he left, nine did. Trump flipped three of them back and got 54 circuit judges confirmed overall, just one fewer than what Obama did in two terms. Biden is unlikely to flip any circuits, not because of the 50-50 Senate but because there are only 26 Republican-appointed circuit judges eligible to take senior status (basically retirement at full salary), and these are clustered on courts that have either D majorities already or hopeless R skews.
Of course, the big battle will come when 82‐year‐old Justice Stephen Breyer retires to avoid Justice Ruth Bader Ginsburg’s fate of being replaced by someone with a different cut to his black robe. If Trump hadn’t pissed away both Georgia Senate seats (and thus the GOP majority) with his post‐election foofaraw, Breyer would likely be staying on through next year’s midterms. Now he doesn’t have that excuse – and a progressive chorus has been calling on our oldest sitting justice to retire even before our oldest-serving president was inaugurated. The Democrats’ tie-breaking majority also ensures that we won’t have the first Supreme Court nominee facing a Senate controlled by the opposite party since… Clarence Thomas.
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Past the Breyer vacancy – mark my words: this or next summer – it’s unclear when the next chance to name a judicial high priest will arise. The next-oldest justices are Thomas (72) and Alito (71), who won’t willingly depart during a Democratic administration. After that comes Sonia Sotomayor (66), but she has only served 11 years and surely feels an obligation to hold up the Court’s left wing.
There’s something unseemly here. Why do we care so much about when octogenarian lawyers decide to devote themselves to golf? Well, the decisions of our legal oracle matter – and those pronouncements increasingly turn on the party of the president who nominated the justice.
Moreover, filling each Supreme Court vacancy is a bigger deal because justices now serve longer. In the early republic, when life expectancy was under 40, the average age of a nominee was about 50. Now, with life expectancy just under 80 – more than that for those privileged codgers already in late middle age – nominees’ average age is… about 50.
To put it another way, before 1970, the average Supreme Court tenure was less than 15 years. Since then, it’s been more than 25. Justices appointed at or before age 50, like John Roberts, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett, are likely to serve 35 years. Justice Thomas, who was 43 when he joined the Court – and this fall will mark 30 years – could serve another decade!
Modern confirmation battles are all a logical response to political incentives given judges’ divergence of opinion and novel expansive role. When judges act as super‐legislators, the media and the public want to scrutinize their ideology.
That’s why people are concerned about the views of judicial nominees and why there are more protests outside the Supreme Court than Congress. Only when we fix that dynamic – when the Court returns power back to the states and the people and forces Congress to legislate on the remaining truly national issues – will we stop debating whether and when justices should retire.
But in the meantime, we have a new presidential commission to tinker around the edges. Even before his inauguration, Biden faced calls to “rebalance” the Supreme Court, with Democratic elites questioning the legitimacy of all six Republican‐appointed justices for various reasons. However, the new president was one of the few candidates against court‐packing during the primaries – Bernie Sanders was another – recognizing that adding seats for political reasons would just lead to Republicans doing the same at their next opportunity.
But then Biden stayed coy on the issue during the general, not wanting to alienate either activists or swing voters. Saying that the judiciary was “out of whack,” he ultimately proposed a commission to study possible reforms. That August body was announced in April and in May, it held its first public meeting which consisted of a recitation of its areas of focus: (1) the genesis of the reform debate, (2) the Court’s role in our constitutional system, including judicial review and jurisdictional scope, (3) the justices’ length of service and turnover, (4) the Court’s size and membership, and (5) the process of case selection and review.
There are three striking things about this commission: It’s big (36 members), progressive (about a 3‐to‐1 ratio), and academic (all but four are professors, plus two retired judges who teach part‐time). Its size will make hearings unwieldy, not to mention the difficulty of trying to write a report by super‐committee. Its ideological skew won’t give the group credibility with Republicans, though the media will use the presence of the token non‐progressives to paint any recommendations as bipartisan. And its recruitment from the faculty lounge will make it easier to dismiss its work as ivory‐tower pontification.
The commission’s membership and its order to “closely study measures to improve the federal judiciary” does nothing to dispel the perception that such presidential actions are little more than kicking cans down the road. The administration undoubtedly hopes that these issues will be less salient when the eventual report comes out – six months after the first public meeting, so by Thanksgiving – with congressional action possible only on technocratic suggestions like adding lower‐court judgeships. The Senate won’t eliminate the legislative filibuster to radically restructure the judiciary.
Coincidentally, earlier in the week that the commission was announced, Justice Breyer cautioned against court-packing (as Justice Ginsburg had). The Court’s “authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics,” Breyer said at Harvard Law School. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Indeed, the Court is the most respected government institution other than police and the military, so questions of legitimacy principally arise when the justices rule in ways that disagree with progressive orthodoxy. To quote a brief filed by Democratic Senator Sheldon Whitehouse in last year’s Second Amendment case, “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.'”
Commission Co‐Chairman Bob Bauer, who was counsel to the Biden campaign and President Obama’s White House, is against court‐packing, but he’ll have a hard time reining in that kind of impulse. Even if he builds consensus over something like term limits – which could eliminate the morbid health watches we now have as justices age – that wouldn’t fix the underlying reason why we argue about the Supreme Court.
All these “reform” proposals boil down to rearranging deck chairs on the ship of state, because what we have is different interpretive theories matching partisan preferences at a time when the parties are more ideologically sorted than any time since at least the Civil War. This, at a time when the Court regularly decides major controversies because the federal government has amassed too much power and Congress has abdicated its policymaking responsibility by punting to the executive branch, which then gets sued. For example, the culture war over contraceptive coverage under Obamacare – remember the Hobby Lobby and Little Sisters of the Poor cases? – was instigated by regulatory action, not anything Congress did.
There are no easy ways to dissolve the toxic cloud that has descended over our judicial debates. I’m interested in the commission’s work, but I doubt it’ll produce anything novel or improve the functioning of the Supreme Court.
In the end, the slew of legislative and regulatory priorities Democrats have after four years of frustration may mean that, even as Biden fills what vacancies arise, judges become a back‐burner issue. But a lot will depend on court rulings we see in response to those policy initiatives, as well as what controversy the Supreme Court stirs up with its term‐ending decisions at the end of the month. Reform pressure may dissipate if the justices don’t make too many waves, which would certainly be Chief Justice Roberts’s preference. But he’s no longer the median vote – Brett Kavanaugh is now the man in the middle.
But even if the justices manage to tread gingerly on Philadelphia’s ban of Catholic Social Services from foster/adoption programs for not placing kids with same-sex couples and California’s forced nonprofit‐donor disclosures, next term already has cases about abortion and guns, with affirmative action possibly joining them.
There’s just no way to keep the Court out of our political discourse – which brings us back to Joe Biden’s judicial temperament.
Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. He’s also been P.J. O’Rourke’s pro bono lawyer in five Supreme Court cases – and worth every penny.
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