There is nothing surprising about Ian Milhiser’s fears. After all, he’s a staunch, if hyperbolic, progressive advocate dedicated to the cause, and so one would expect him to cry the sky is falling at every turn.
The memo, co-authored by law professor and Federalist Society founder Steven G. Calabresi, proposes a monumental expansion of the federal judiciary. It also is not subtle about its motivations. As the memo states in its introduction, a major purpose of this court-packing scheme is “undoing the judicial legacy of President Barack Obama.”
Shockingly, conservatives aren’t as thrilled by Obama’s judicial selections as they are of their own. So Calabresi has come up with a scheme to expand the number of judges, which will enable Trump to appoint them. Trump’s White House counsel looks to the Federalist Society for nominees, so it’s a really good idea for the FedSoc if this were to happen. It won’t, but a guy can dream, right?
But it’s not enough to argue that this is a wild, crazy idea. While there is good reason to fill the vacancies on the federal bench, expanding it is unnecessary (the caseload just isn’t there) and the entire enterprise stinks of politicizing the bench. Despite all the hoopla, there is one firm reality that every federal trial lawyer knows: the political range of federal judges is bad to fucking awful. Your beloved empathetic Latina, when she sat on the Second Circuit, never met a defendant who didn’t deserve life plus cancer.
But Calabresi uploaded his memo to SSRN, the Social Science Research Network, which is a website where academics upload their articles. And this somehow made heads explode. First, there was Dahlia Lithwick at Slate.
This month, the formerly Trump-hating Calabresi also floated a plan to allow Trump to pack the courts with judges of his choosing—to have the GOP-controlled Congress “appropriate funds to increase the size of the lower federal courts.”
In ordinary times, one might expect a document like this to be passed quietly among like-minded Capitol Hill staff members. But conservatives these days put their cards on the table. Professor Calabresi posted a link to his memorandum on National Review’s website and uploaded it to the Social Science Research Network, a widely used web-based index of newly published scholarship.
Orin Kerr called this “hyperventilating.” Economist legal writer Steven Mazie called this “calmly critiquing the content of one article.” While it may be a bit too much to call this hyperventilating about a prawf uploading a writing to SSRN, which includes such gems as Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006), Greenhouse’s suggestion that this is FedSoc porn that, “in ordinary times,” would be shared in the boy’s room is certainly inane.
Here’s the deal: the Republicans control the presidency and Congress, and they get to pick the judges who better reflect their judicial philosophy. If the Democrats take control, they can, and will, do the same. This isn’t magic. This is politics. Greenhouse’s attempt to create the impression that this isn’t ordinary is ridiculous.
Given that no one has murdered more words trying to politicize the judiciary than Greenhouse, and create public mistrust in judges as being mere mouthpieces for their political overlords, she doesn’t get a pass for writing yet another op-ed designed to mislead the public, even if it falls shy of hyperventilating.
For criminal defense lawyers, little of this matters. The Democrats appoint judges who feel badly about imposing life plus cancer, and the Republican judges don’t. But both impose life plus cancer, even if one side does so in a kinder voice. Yes, there are exceptions, and mistakes when it turns out that a Republican appointee comes to the realization of how bad the law is, particularly with regard to mandatory minimums. Sometimes, they even grant suppression.
But this a fight over the crumbs of the system. It was terribly wrong of the Senate to refuse to put President Obama’s Supreme Court nominee, Merrick Garland, to a vote, but Garland was no better from a criminal law perspective than the hated Neil Gorsuch, and may well have been worse. The reason you think otherwise is because writers like Lithwick and Greenhouse, and obviously Milhiser, tell you otherwise. Over and over. And over. Now that’s hyperventilating. And false.
The means by which you get a judiciary more attuned to your political agenda is to get your side elected, whether to Congress and/or the presidency. Attacking judges for not being of your political persuasion serves only to undermine the institution. With Trump as president, and Congress dysfunctional, don’t drag down the only institution that remains quasi-viable.
Sure, the notion promoted by Calabresi to expand the judiciary to load up on conservative judges is a terrible idea. But that doesn’t mean it’s not “ordinary times” when the other team tries to beef up its side when it’s in power. There is nothing so ordinary as uploading a paper to SSRN, nor nominating judges who suit your tastes.
Maybe Greenhouse would better serve her cause to argue against the positions that keep Democrats from being beaten by Republicans. And then she can return to her ordinary times, when the victors who get the spoils are her team. At which point she might appreciate public respect for the judiciary as an institution, even if her team’s choices impose life plus cancer just like the other team’s.