An Idiot’s Guide to Unpacking the Courts

Abortion Cases in Court Helped Tilt Democrats Against the Filibuster.” This New York Times front-page story was a press release rather than an investigative report. Through it, the Obama Administration and the Democratic Party cast aside their pretense that they had turned the Senate into a purely partisan body for any public-spirited reason, and broadcast to their most faithful supporters a powerful message: We are packing the Federal Courts for you! Democrat constituencies whose daily bread comes from partisan regulations – the alternative energy industry, for example – knew that already. But less sentient parts of the “base” needed to have it spelled out that the Party uses absolutely all its powers to serve them.

Which brings us to the really interesting part: The Republican Establishment has responded to the Obamian Democrats’ seizure of parliamentary power and, prospectively, of the judiciary, with mere calls to “vote Republican.” The reason such calls are unconvincing is that the Republican Establishment has no intention of using any of the powerful powers it has to prevent court-packing, and indeed to unpack the courts.

It is no little indictment of our Mitch McConnells, John Boehners, and Chris Christies that they leave it to a poor columnist to point out the obvious.

CapitolioYes, the Democrats can name and confirm their faithful Felix the Cat to any court in the land. But Felix can exercise that judicial power only if he is paid, his clerks are paid, and his expenses are paid. That takes money from the Treasury. Art. I:9 of the Constitution says that money can come from the Treasury only by law passed by both Houses and signed by the President. Republicans can negate Felix’s appointment by not funding his position.

There are several ways of doing that. If the government were to be funded by regular appropriations bills, the Republican House could simply not increase (or even decrease) the amount allotted to the court on which Felix was to sit. So long as the Democrats insist on funding the government by the noxious device of Continuing Resolutions, the Republican House can write the budget for each of the courts into the CR – which it has every right to do. If it really, really wants to drive a stake into Felix, it can place this staple of Congressional power into the law: “no funds authorized herein shall be spent for…” To make triply sure, it can add this other staple: “notwithstanding any other provision of law or administrative action…”

These devices can be used as well to un-pack courts that are already packed. Here, Continuing Resolutions can be used for positive leverage. Either house of Congress can add language setting the number of judges on any court. If it reduces the number of judges, it can designate the class of judges (the earliest confirmed, or the latest, for example) placed on inactive status.

The court-packers will object. They and their President can be counted on, as in the past, to insist that the House pass the Continuing Resolution that funds the government precisely, exactly the way they want it: packed courts, Felix-the-judge, and all, and if the Republicans insist on modifying the will of the Democrats in any way, the President will “shut down the government” blaming it on the Republicans. But that tactic’s inherent half-life shortens by use – especially if the Republicans stop playing along.

The Republicans could insist: “By what right do you hold the rest of the country hostage to your obvious, declared, avowed, court-packing plan?” Why should the country agree to judges picked for their prejudices in favor of abortion and other partisan priorities?

Three quarters of a century ago, when Franklin Roosevelt tried to pack the courts with prejudiced judges, the Republican Establishment was just as disposed to let him get away with it as it is now. But a young senator named Robert Taft shocked the Establishment, roused the country against the power grab, inflicted grievous losses on the Democratic Party, and forced FDR to back off. But Taft forced votes, limited expenditures, etc. by using powers far inferior to the ones available today to the Boehners, McConnells, Cantors, Grahams, and Christies. Consistency between word and deed is why people followed Taft.

If today’s Republican Party, possessed of a majority in the House, consisted of Robert Tafts it could do much more than prevent court-packing. If, instead of talking against Obamacare and then fearfully voting to fund it, the Republican Establishment were to force vote after vote in which the Democrats had to defend their regulations’ indefensible un-grandfathering of millions of insurance policies; and to defend the details of their law’s Independent Payment Advisory Board (IPAB) that exists only to ration health care and that will surely sentence countless Americans to death; then the majority of Americans who are distraught at the country’s direction might take the Republican Party seriously.

The New York Times’ story provides solid evidence to Liberal constituencies that their Party is looking out for them. The outcome of elections will change only when comparable stories can do the same for Conservatives.

Reader Discussion

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on December 01, 2013 at 19:26:23 pm

[…] Codevilla offers advice on how the House of Representatives can unpack the federal courts using the power of the purse. Don’t look for this to happen anytime soon given the current […]

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Image of Links for 12-1-2013 | Karl Heubaum
Links for 12-1-2013 | Karl Heubaum
on December 01, 2013 at 21:22:44 pm

My memory may be way off, but I think I recall the existence of some authority in the Senior Judiciary to assign Circuit Court Justices to other than their "appointed" Circuits in cases of "Judicial Emergencies" and certain other events.

Since the D C Circuit is "over-staffed" would it not be possible to "temporarily give each of the three newest (junior) Justices assignments to three different circuits which have not had executive attention, but need Justices?

Am I way off base here?

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Image of R Richard Schweitzer
R Richard Schweitzer
on December 01, 2013 at 22:09:27 pm

Doesn't the constitution also say "The Judges, both of the supreme and inferior Courts... shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office." (Article III Section 1)

I don't see how you can possibly use the power of the purse to do anything about judges. Sure it can refuse to increase their compensation, or decrease it for all new judges, but it cant decrease it for existing judges...

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Image of Devin Watkins
Devin Watkins
on December 01, 2013 at 23:31:47 pm

Well I think in my previous post I explained why I don’t believe the power of the purse can be used to fix the problems you are describing, that doesn’t mean there are no possibly constitutional solutions though.
1) Technically its possible the number of judges on a court can be changed, even potentially the supreme court, diluting the votes of the current judges, but its hard to say if this would be allowed or not. This was FDR’s plan, which was considered dubious in its own day and I would agree its constitutionally suspect, but not clearly disallowed. The number of judges on the supreme court has been changed several times.

For instance if you look at the supreme courts website it says:”
Who decides how many Justices are on the Court? Have there always been nine?
The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.” (http://www.supremecourt.gov/faq.aspx)

I believe it started at 6 seats to be appointed which George Washington appointed all of them. Then it was decreased in 1801 to five (by attrition as a seat became vacant, no justices removed), then increased to seven members in 1807, to nine in 1837, to ten in 1863, reduced to seven in 1866 (again by attrition), and finally in 1869 Congress set the Court's size to nine members where it is today (although it still had 8 members at the time so only 1 new seat was created). I think Andrew Jackson was the only person other then George Washington that was able to appoint more than 1 new justice when the Supreme Court was increased from 7 to 9. (not sure about jefferson when it was increased from 5 to 7, but I think only Thomas Todd was filling a new seat, it had been reduced from 6 to 5 before and I think it was still at 6 when it was increased from to 7). It has never been done, as far as I know, to reduce the power of the votes of the current justices (although one might think the decrease from 6 to 5 was to prevent Jefferson from appointing additional justices)

Still there are clearly political problems with doing something like this as FDR saw, it’s a really obvious ploy to basically take over the supreme court (imo there should be a constitutional amendment so this kind of thing cant occur).
2) Circuit courts can be eliminated. For instance the court of federal claims could be abolished, and all jurisdiction it use to hold return to the appropriate circuit court. Its possible that a whole court of appeals courts could also be abolished and new ones could be created. The original circuit courts had their appellate jurisdiction stripped and then were abolished. What happens to the judges in this case? I think they are still judges, but without sitting on a court anymore (they are still paid the same).
3) Appellate jurisdiction could be stripped from a court in its entirety or as to some specific issues. For instance its possible for congress to strip the appellate jurisdiction of the entire federal court system including the supreme court in cases on a specific subject. In that case each state supreme court would have to make its own choice as to what the constitution means on that subject and they might disagree. Even the supreme court can have its appellate jurisdiction stripped while it is debating a case (see Ex Parte McCardle: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal")

But you cannot strip the original jurisdiction of the supreme court, so expect direct lawsuits on subjects against government officials in the original jurisdiction of the supreme court if you try to strip it too much (if they will grant original jurisdiction or not is a question though).

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Image of Devin Watkins
Devin Watkins
on December 04, 2013 at 11:59:44 am

Along the lines of Devin's comments, the conservative guide to unpacking (and repacking) the courts looks has the following simple steps:
1. Win Senate in 2014
2. Win Presidency in 2016
3. Suspend filibuster
4. Abolish DC Circuit or limit its jurisdiction strictly to hearing appeals of denial of social security benefits
5. Establish new court to replace DC Circuit
6. Appoint all conservative judges to new court
7. Just for fun, name new court building the Harry Reid Justice Center
8. Repeat as desired for any other Circuit courts

If Republicans can grow a set, Democrats will rue the day they killed the filibuster.

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on December 04, 2013 at 13:31:18 pm

[…] really, really wish Speaker Boehner would drop immigration reform and read this post from The Library of Law and Liberty, titled, “An Idiot’s Guide to Unpacking the Courts”.  Honestly, y’all, there is nothing in the LibertyLaw article that is rocket-science.  The […]

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Image of Power of the Purse only works if it’s used | Honest Answer Radio
Power of the Purse only works if it’s used | Honest Answer Radio
on December 04, 2013 at 15:31:11 pm

Congress no longer has the "power of the purse," Mr. Codevilla. As this week's hearing has made clear, the Obama Administration already re-directs funds to wherever they wish--in open defiance of the will of congress. Moreover, members of Congress have no standing to sue Obama's unconstitutional expropriation of congressional prerogatives. After the D.C. Circuit is packed even if they have standing they will lose.

Perhaps armed rebellion would work, but nothing short of that is likely to.

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Image of PD Quig
PD Quig
on December 04, 2013 at 18:45:17 pm

[…] points out that, now that the Senate has taken the nuclear option regarding the filibuster, the House can take the nuclear option regarding budgets, at least insofar as controlling judicial nominations goes.  I’m of two minds about this.  […]

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Image of Another bouquet of goodies from the blogosphere
Another bouquet of goodies from the blogosphere

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.