Would Trump Consider a Court-Packing Scheme?

Journalists have developed an elaborate taxonomy to describe Donald Trump’s subversions of truth, distinguishing “exaggerations” from “misleading claims,” and “false statements” from bald-faced, flat-out “lies.” There is not yet, however, a term for Presidential boasts that sound like lies but happen to be true. Such statements are rare, but Trump uttered a notable one on October 16th, during a joint press conference with Mitch McConnell, the Senate Majority Leader, in the Rose Garden of the White House. “There has never been anything like what we’ve been able to do together with judges,” Trump said. This assessment had all the trappings of a typical Trump whopper: vagueness and smugness. And yet he is right. McConnell’s strategy of shutting down the judicial-appointments process during Barack Obama’s last two years in office gave Trump, at the time of his Inauguration, a hundred and three vacancies to fill—more than twice as many as Obama had in 2009. The number of openings has continued to grow, and Trump has been filling them at an unprecedented rate. His nominees, as a group, are the youngest, whitest, male-est, and most conservative in modern memory. Newt Gingrich observed in a recent op-ed that “the importance of this dramatic reshaping of the entire federal court system cannot be overstated”—another hyperbole that is, very possibly, accurate.

Still, for some conservatives, Trump’s reshaping of the courts is not nearly dramatic enough. Steven G. Calabresi, a law professor at Northwestern University and a founder of the Federalist Society, has described Trump’s achievements so far as a mere “pin-prick.” On November 7th, Calabresi published a sweeping plan to pack the federal courts—not just by filling vacant seats but by increasing the number of seats for Trump to fill. The proposal, co-authored by Shams Hirji, a recent graduate of Northwestern’s law school, is dressed up with data and charts about judicial caseloads, but its stated premise is straightforward: to create “a sufficient number of new judges that would help change the balance of power . . . back to a conservative majority” and would clean up the “damage done to the rule of law” by Obama’s appointees. How many new judges? Thirty to fifty per cent more than we have today, Calabresi suggests, and he would like them right away, please—before Democrats have a chance, in 2018, to take back the Senate. As the former Clinton and Obama adviser Ron Klain has pointed out, in the Washington Post, this would, “almost overnight,” make the number of Trump-selected judges on the federal bench nearly equal to the number appointed by the last nine Presidents combined.

Calabresi’s proposal owes a great, if unacknowledged, debt to Franklin Roosevelt’s failed attempt to increase the size of the Supreme Court from nine Justices to fifteen, a plan put forth in 1937. The defeat of F.D.R.’s plan required a massive, months-long battle by courageous members of Congress who were in the President’s own party, and a bipartisan commitment to the sanctity and independence of the judiciary. What makes Calabresi’s proposal alarming is that such resistance is practically inconceivable in the party that controls Congress today. ...