Our “Aristocracy of the Robe,” as French diplomat de Tocqueville described America’s lifetime judiciary nearly 200 years ago, is facing the prospect of major changes.
Opponents tried to portray Joe Biden as a president who would pack the courts if he were elected as a reprisal against Republicans who confirmed Amy Coney Barrett to the Supreme Court on the eve of the election – an action that was legal but unprecedented and unprincipled by Republican senators and Donald Trump).
However, with a grace and caring for communication (contrasting so sharply with Loser Trump), Biden said during the campaign that he would appoint a bipartisan commission to consider appropriate changes for lifetime judiciary at all levels.
The formation of the federal judiciary was left to Congress — a sign that the new Congress in 2021, not limited by the Constitution as, for example, the Electoral College is, can have its opportunity to interact with Biden’s bipartisan commission. The Judiciary Act of 1789 was the very first measure introduced in the U.S. Senate. This reflected concern of the nation’s founders to institute a system of checks and balances with an independent judiciary.
The 1789 Act divided the nation into 13 judicial districts, which were organized in three circuits. These became the Appellate Courts. Initially, the Supreme Court had a chief justice and five associate justices. However, the number of justices changed several times from six and once reached 10 before in 1869 settling on nine in our present nine.
Our judiciary is divided into District Courts, Appellate (previously Circuit) Courts and the Supreme Court. Appointees to all three, including the justices on the Supreme Court, are accorded other protections for independence in addition to serving “for good behavior” – which has long been interpreted as “for life.” (Efforts to impeach federal judges or justices are as rare as Halley’s Comet.)
Just as the numbers on the Supreme Court have been changed by Congress, so too have those for the lower courts. The “Article III lifetime judges have been increased by Congress from 660 (Reagan’s presidency) to 757 (G.H.W. Bush) to 842 (Clinton) to 862 (G.W. Bush), to 871 (Obama) to the current total of 870 (Trump).
Vacancies for lifetime justices and Judges occur with retirement, with death – and with Senior Status. That last category is enormously important going forward. If a federal judge chooses senior status, a vacancy is created so a president can offer a nominee for that judgeship. There are currently 438 out of the 870 federal judges who are or will be eligible for Senior Status in 2021.
The math is not complicated: More than half of all lifetime federal judges could have vacancies, depending on the decisions of incumbents. What an opportunity that would be for President-elect Biden to name younger, more diverse people to the federal judiciary.
Biden will need to deal with some major restraining forces, however. While Senior Status creates a judgeship vacancy, the sitting judge continues to be involved in a more limited basis.
Whether for replacing Senior Status judges or nominating people for other vacancies, Biden will need cooperation from the Senate. When there is a divided government trade-off deals are made sometimes; I will have Judge A this time and we will advance your Judge B next time (obviously easier if the trade-offs occur when a deal can be made with two vacancies at the same time). Such considerations could produce less partisan nominees.
Biden might have two avenues to bolster his strength: 1) if Democrats win both run-off Senate seats in Georgia, the Senate will be 50-to-50 (with the precedent-shattering first woman, person of color Vice President Kamala Harris able to break ties.
Obviously, control of the Senate will also be vital to any Biden legislative program. In addition to winning those two Georgia special elections on Jan. 5, what are the prospects that one or more Lincoln Project Republicans will vote with Democrats, reflecting independence from the harm Trump has done to the GOP? Might one or more change party affiliation? It has happened in the past.
Recently, TV news anchor Jake Tapper asked a panel whether the Biden administration would, in effect, be a “third Obama term?” To which, the ever perspicacious Van Jones exclaimed: “Halleluiah!”
A series of positive developments for Biden will ready him for the first Supreme Court vacancy, when he will name Barack Obama as the new Justice!
Going forward with Biden’s bipartisan commission, Justice Elena Kagan notes that the 18-year term for Supreme Court Justices seems to have the most favorable responses. If that system is phased in, each president will have the chance to name two Supreme Court Justices in a four-year term of office.
At the end of 18 years, there will be an expanded range of Senior Status options for justices who have served that long.