This Is More Realistic
-by Jack Hannold
The right-wing Supreme Court can’t be fixed through impeachment. While a simple majority of the House can impeach an official, it takes a two-thirds majority of the Senate to convict. Democrats now have a slender 51-49 majority in the Senate, and only 10 of the 33 Senate seats at stake in November are now held by Republicans. Winning all 33 contests— a virtual impossibility!— would give the Dems a net gain of only 10 seats, for a 61-39 majority— six seats short of two-thirds.
So removing any of the six Federalist Society hacks now on the court won’t be possible for at least the next two years. But it would be possible to expand the courts— not just SCOTUS, but the entire federal judiciary— if the Democrats control both the House and the Senate. Legislation to do that can be passed by a simple majority vote in both chambers.
In an email to Howie two years ago yesterday, I suggested how we could expand not only the Supreme Court, but also the appellate courts and district courts, in order to re-balance the entire system. I wrote it nine days after the Dobbs decision.
Though it’s two years old, it seems more timely than ever in the wake of Monday’s presidential immunity decision. So here it is for your consideration:
To: Howie Klein
From: Jack Hannold
Sent: Sunday, July 3, 2022 3:16 PM
Subject: The 12th Circuit Court of Appeals: California!
Howie,
When I read your post about expanding the Supreme Court on Saturday morning (Increasing The Size Of The Supreme Court Shouldn't Be Controversial—It's About Much Needed Reform), the only thing I didn’t quite agree with was your suggestion that “the number really should be 13, not 9.”
It would be better to make it at least 15— and not just because it would be better to have sensible rulings by a 9-to-6 vote than by 7-to-6. We’ll also need more justices to handle an increasing number of cases from the appellate courts.
And those appellate courts need to be expanded too.
Trump appointed 53 of the 179 judges currently serving on the appeals courts — nearly one-third of them. (In fact, he appointed 54, but one of them was elevated to the Supreme Court in the closing days of his administration, in flagrant violation of the 2016 McConnell Doctrine.)
But before we consider how many new judges we need to balance the appeals courts, let’s look at the 11 current circuit courts—and their populations:
We really need a 12th Circuit Court of Appeals, and it should come from the 9th Circuit, which is nearly twice the size of the 11th and 5th Circuits. And because states are not divided between circuits, the only logical way to divide the 9th would be to make California, and California alone, the new circuit.
With California’s 2020 population of 39,185,605, the new, single-state 12th Circuit would be the most populous circuit, while the rump 9th, with 27,864,429, would rank sixth in population.
Then, after establishing the 12th Circuit, we should establish a minimum requirement of one appeals court judge for every 1.5 million people in the circuit. That would require 19 judges for the rump 9th Circuit and 27 for the new 12th— a total of 46 judges, or 17 more than the 29 on the current 9th Circuit. It would also require anywhere from one to 13 additional judges on each of the other existing circuit courts.
Those newly appointed, non-Federalist Society judges on the appellate courts would bring much needed balance to the currently Trumpified federal judiciary. SCOTUS accepts only about 1% of the petitions it receives. The circuit courts are the final arbiters in most cases. That’s why it’s important to expand them as well as SCOTUS.
And we’d need 14 associate justices on SCOTUS to supervise the 14 appellate courts: the 12 circuits, DC and Federal. (With John Roberts as Chief Justice, it’s just as well that he doesn’t have one.)
Of course, it’s important to put non-Federalist Society judges on the district courts, too. But think of balancing the circuit courts (and SCOTUS) first as a form of triage. Obviously, expanding SCOTUS should come first, ideally beginning right now, though we may not be able to do it with the current Senate. Still, it should be a centerpiece of every progressive Democrat’s campaign.
But, you ask, won’t the Republicans just further expand the courts when they take power again?
Yes, they will— if they take power again.
But if enough Democrats campaign intelligently— citing all the recent outrageous SCOTUS decisions, as well as emphasizing pocketbook issues— we could not only hold on to both houses of Congress but even gain some seats, even in the Senate. And if they can deliver, the GOP will become the permanent minority it deserves to be.
And stressing the SCOTUS issue might even help enough Democratic gubernatorial, state A-G and state Secretary of State candidates win in enough states to prevent a Republican coup in 2024.
Feel free to share this message with anyone you think might be interested in the 12th circuit idea.
Note from Howie:
I shared it with my congressman, soon-to-be Senator Adam Schiff, who wrote back: “Thanks... really good data and analysis.”