Trump and the Lower Courts – by Glenn Harlan Reynolds
Impeachment is a symbolic and probably self-destructive gesture. Those are for Democrats, not for Republicans who want to Make America Great Again.
But here are some things that could be done, lower profile but more effective.
First, expand the courts. No, no, not court packing, nothing like that. The National Judicial Council just recommended adding 66 District Judges and two Court of Appeals judges to remedy the crisis of undermanned federal courts. Republicans should do at least that, though I would add at least two new Court of Appeals judges to each circuit. And I might increase the number of district judges appointed to the District for the District of Columbia, and perhaps the Southern District of New York, beyond the Council s recommendations on the ground that those districts seem to be getting busier.
This wouldn t be court-packing, since it s simply following the recommendations of a non-partisan commission. (And in truth, it s been widely agreed for many years that the federal courts are understaffed).
Now for the Supreme Court. Again, no partisan court-packing. Instead, in a spirit of bipartisanship, the GOP should enact the Democrats bill from 2021, which would have expanded the Supreme Court from 9 to 13. Although perhaps, in a spirit of generosity, they might increase the number to 15.
Okay, this is good clean fun, and letting it be known that these changes are on the table would probably be an inducement to better behavior and in particular an inducement to the Supreme Court to begin supervising lower courts more vigorously. And you could do this with simple majorities of the House and Senate.
With simple majorities you could, as I ve previously suggested, bring back the requirement for three-judge district courts when the legality of federal statutes is challenged, and expand that requirement to include challenges to executive orders.
Another thing you could do with simple majorities, as Ron DeSantis has noted, is to strip federal courts of jurisdiction to issue Temporary Restraining Orders and Preliminary Injunctions in the class of cases that we ve been seeing. Or, indeed, to strip them of jurisdiction to hear any complaints regarding the internal administration of the Executive. Or stripping courts of jurisdiction to issue any order in such cases until an appeals bond has actually been posted by the moving party.
Great ideas, Glenn. Play stupid games, win stupid prizes.