In response, Professor Calabresi has claimed that his scheme is really a "court unpacking" scheme, designed to "counter-act[] Democratic court packing under President Carter" and packing-adjacent chicanery under Chuck Schumer. President Carter, the story goes, packed the lower courts by expanding them; Chuck Schumer protected Carter's court-packing from attrition by filibustering George W. Bush's nominees and abolishing the filibuster for lower-court judges during Obama's presidency. (Actually, Harry Reid did that.) That's why, he writes at the National Review, most of the circuit courts (nine out of thirteen as of 2016) are majority-Democrat-appointee instead of majority-Republican-appointee:
Republicans will have controlled the presidency for 32 of the 52 years between 1969 and 2021. By all rights, Republicans ought to have a three-fifths majority on all the federal courts of appeals. Instead, there is a Democratic majority on almost all of those courts. [AS: Actually, nine out of thirteen. Calling that almost all is mathematically identical to saying that Mike Trout makes an out in almost all of his at-bats, or that the day is almost all over at 4:37 P.M.] This is the result of the Carter judgeship bill plus Senator Schumer’s [AS: Reid's] shameful behavior in filibustering Bush’s lower-court judges and then abolishing the filibuster for Obama’s lower-court judges.
Or as he puts the point only a hair less tendentiously at Balkinization:Our proposal simply would restore the judiciary to what would have been the status quo but for Democratic court-packing
The bottom line is that the Republican Party won the presidency for 32 out of the 52 years between 1969 and 2021 and so one would expect that about three-fifths of all federal court of appeals judges would be appointed by Republican presidents. The fact this is not the case is evidence of the court packing Jimmy Carter and Chuck Schumer have been engaged in.I don't know if Calabresi seriously believes that we should expect 60% of active judges on every circuit to have been appointed by Republican presidents because Republican Presidents will have held the White House for 60% of the time between 1969 and 2021, or actually thinks that there's any Carter "court-packing" left to unpack. Probably the more charitable assumption is that Calabresi understands the current composition of the courts isn't a function of Carter and Schumer/Reid's "court packing," and that he is merely attempting to provide a thin veil of spin to politicians who might support his plan.
However, supposing that Calabresi means what he says seriously, the reason Democratic appointees control the circuit courts in spite of Republican control of the White House for three-fifths of the 1969–2021 period is not anything that Carter or even Schumer and Reid did, but death and senior status. The lifespan of the average circuit-court judge is simply too short, the temptation of senior status too great, and the age at which circuit-court judges are appointed too high, for Republican control of the White House through much of the '70s, or even Republican control of the White House through all of the '80s, to have much effect on the composition of the circuit courts in 2017.
To begin with, it is nonsense to say that we should expect anything about the composition of the courts because of Republican control of the White House in 2018, 2019, and 2020, which, it should hardly need saying, haven't happened yet. When those years do pass, we should expect the courts to become somewhat more Republican, but they have to pass first. So the relevant years, taking Calabresi's start date of 1969 as a given for a moment, are 1969 through 2017, and Republicans have controlled the White House for twenty-nine of those forty-nine years. To be sure, that's still 59%. But then we come to the matter of Calabresi's start date.
The first eight of the twenty-nine years since 1969 that Republicans controlled the White House were 1969–76, five and a half of which were years when Nixon was the President, two and a half of which were years in which Ford served out Nixon's second term. If for some reason we discounted those, Republicans would have controlled the White House for just twenty-one of the relevant forty-one years.
Now, in spite of only holding the White House for five and a half years, Nixon was a tremendous success as an appointer of federal judges. He appointed four Supreme Court Justices, and 231 federal judges in all, thirty-eight more than the previous record-holder, FDR, who held the White House for a little over twelve years. Nixon's appointees, however, couldn't live forever. Chief Justice Burger and Justices Powell, Rehnquist and Blackmun are all dead. So are most of the forty-six judges he appointed to the courts of appeals.
Of the small handful who aren't dead, all of them either retired from the judiciary altogether or took senior status long ago, a form of semi-retirement that can become available as early as age 65. The last active Nixon appointee to the courts of appeals retired from active service over ten years ago, and died two months later. By 1998, he was the only Nixon appointee in active service on the courts of appeals; by June 30, 1992, only eighteen years after Nixon's resignation, he was one of only three. Only three Nixon appointees even remain in senior service; the youngest is almost eighty-nine years old. Many of the other Nixon appointees that Calabresi seems to think should still be on the lower courts would be well over a hundred were they alive today.
None of this should be surprising. The '70s were quite a while ago. And because of the normal age of appointment to the circuit courts (somewhere in the 40s or 50s), the attractions and early availability of senior status (which carries full pay), and the weak inducements to serve in active status until death, a president's influence on the composition of the lower courts wanes very rapidly—far more so than his influence on the composition of the Supreme Court, where, for example, Nixon/Ford appointees made up a majority of the Court until Burger's retirement in 1986, and still held two of nine seats until Rehnquist's death in 2005.
We should not expect, then, anything about the current composition of the circuit courts on account of Nixon's tenure in the White House; each and every of his appointees to those courts aged out of active service over a decade ago. What about Ford? Ford, who spent half of his time in the White House running for reelection, appointed eleven judges to the courts of appeals in his brief presidential stint. Of those eleven, one, Gerald Tjoflat, is still in active service in the courts of appeals; Justice Kennedy, a Ford appointee to the Ninth Circuit, is still active, but is so on a higher court. As early as 1998, almost twenty years ago, there was only one active-duty Ford appointee left on the courts of appeals, Judge Tjoflat. The others were appointed to the Supreme Court or took senior status, and of the senior-status judges, only two of them even still hold senior status; the others died off. The youngest of the remaining Ford circuit judges, Tjoflat, is about to turn eighty-eight.
We shouldn't expect, then, the current composition of the circuit courts to reflect Nixon or Ford's tenure in the White House; through no fault of Democratic "court-packing," only one of the fifty-seven circuit judges Nixon and Ford appointed is both alive today and chooses to remain in active service. Nixon and Ford's eight years in the White House are simply irrelevant to present circuit-court composition. So rather than Republicans controlling the White House during twenty-nine of the relevant past forty-nine years, we could say that Republicans have controlled the White House during twenty-one of the relevant past forty-one years, or just over 50%.
That assumes, however, that Carter's four years in the White House are relevant. This is a double-edged sword for Calabresi's argument. If we discount Carter like we discounted Nixon and Ford, while (incorrectly, as it will turn out) treating Reagan and George H.W. Bush as especially relevant, Republicans would have controlled the White House for twenty-one of the relevant past thirty-seven years, or back up to 57%, begging the question of why Democratic appointees control the circuit courts. On the other hand, if we discount Carter as a meaningful influence on circuit-court composition, we reject half of Calabresi's court-packing thesis: that the composition of the circuit courts is a function of President Carter and Senators Schumer and Reid's court-packing. As it turns out, Carter is just as irrelevant to the composition of the circuit courts today as Nixon and Ford; his "court-packing" has nothing whatsoever to do with Democratic control of those courts.
Carter appointed a great many judges to the circuit courts, fifty-six, in part because a bill enacted during his tenure with robust Republican support created a great many new circuit judgeships. However, of these fifty-six judges, only one is in active service on the courts of appeals, a now eighty-six-year-old Stephen Reinhardt. The others all retired, took senior status, died, or became Supreme Court Justices. At the end of Carter's presidency in 1981, Carter appointees held a whopping 42% of the 132 active judgeships on the courts of appeals. By November 2005, only twenty-four years later, Carter appointees held just seven of the 179 active judgeships on the courts of appeals, or a little less than 4%. Today, the number is 0.6%. As with Nixon and Ford, death and the attractions of senior status rapidly eroded Carter's influence on the composition of the lower courts. The composition of those courts simply has nothing to do with Carter's wealth of '70s appointments, whether or not those appointments should be deemed the fruits of a court-packing scheme.
Having discounted Carter, Nixon, and Ford, should we expect the composition of the courts to reflect Republican control of the White House for 57% of the years between 1981 and today? Again, no. Reagan, like Nixon, was a colossal success as a judicial appointer, appointing three Justices to the Supreme Court and eighty-three judges to the circuit courts to just under half of the 167 circuit judgeships that existed by the end of his tenure. He was certainly no victim of Democratic defensive court-packing. Today, however, what were once eighty-three active judges comprising half of the circuit court judgeships have become ten active judges comprising 5.6% of the circuit court judgeships.
This isn't Democrats' fault, of course; Reagan's appointees simply died or retired. Indeed, in circuits that Republican appointees do control, the reason is often that Reagan appointees have stuck for longer than most. The Seventh Circuit has an eighty-one-year-old Reagan appointee, a seventy-nine-year-old Reagan appointee, a sixty-nine-year-old Reagan appointee, and until recently had a seventy-eight-year-old Reagan appointee, Judge Posner. Because of the unusual declination of these judges to take senior status, Democratic appointees never gained a majority on the Seventh Circuit in the Obama years. Two of the Fifth Circuit's thirteen active judges are Reagan appointees, both appointed to the court at unusually young ages. A more typical story is the Ninth Circuit, where six Reagan appointees have died, three have taken senior status, and one, Judge Kozinski, who joined the court at thirty-five and is only sixty-seven today, retains active status amongst a court of twenty-nine.
Reagan, then, is barely relevant to the present composition of the circuit courts, like the presidents before him; between him, Carter, Ford, and Nixon, presidents who collectively held the White House for twenty of the past forty-nine years, we can account for only 6.7% of the active circuit judges. Assuming George H.W. Bush is still relevant to the composition of the circuit courts, Republicans held the White House for only thirteen of the relevant past twenty-nine years, or 45%.
Bush, however, is no more relevant than Reagan. Like Reagan, he was not a victim of Democratic obstruction; he appointed forty-two judges to the circuit courts, or 23%, a robust number for a presidency that lasted four years. Today, though, only nine active judges are left, comprising 5% of the active judgeships. Over half of the thirty-three other appointees serve in senior status; the rest have retired or died.
Collectively, Bush and Reagan account for 10.6% of the active circuit-court judgeships; their predecessors account for only 1.1% more. The remaining overwhelming majority of active judges were appointed by Clinton, George W. Bush, Obama, and Trump, in a twenty-five-year period when Democrats controlled the White House 64% of the time. Thus, we should expect to see majority-Democrat circuit courts, as we in fact do. As it turns out, today Republican appointees hold 46% of the filled active judgeships (seventy-six of 166), which is just about what you'd expect, if not indeed better, given the dwindling influence of the Reagan/Bush presidencies and Democratic dominance in the White House thereafter.
Democratic dominance in the years that are actually relevant to circuit-court composition is not the only reason for Democratic majorities on the lower courts, however. The other reason is that the last President was a two-term Democrat. Professor Calabresi claims that besides Carter's "court-packing," the other driver of Democratic dominance on the circuit courts was Harry Reid's use of the filibuster in the Bush years and abolition of the filibuster for judicial nominees in the Obama years. Yet in spite of this manipulative use of the filibuster, Bush actually appointed more circuit court judges than Obama: sixty-two, to Obama's fifty-five, over the same length of tenure. And in spite of the filibuster's abolition in 2013, Obama would only succeed in appointing two judges in 2015 and 2016, thanks to Republican blue-slipping and control of the Senate.
It's true that Democrats blocked a few more Bush nominees than Republicans blocked Obama nominees. Bush ultimately lost five nominees to the filibuster, nine others to stall tactics, and six to blue slips, for a total of twenty. (I omit from my list of stalls three nominations made in late-July through September of 2008, which fell afoul of the so-called Thurmond Rule.) By my count of the nominees on this list of Obama's nominations, which omits Abdul Kallon's nomination to the Eleventh Circuit, thirteen of Obama's circuit court nominees never got a vote, whether because of the blue slip, filibustering, or stalling in committee.
That's a difference of only seven, and the Obama count omits the many vacancies that never even got nominations in the Obama years because of the threat of blue slips, like the two long-open Texas vacancies on the Fifth Circuit that are only now being filled. It should also be noted that Bush filled a number of the vacancies for which his initial nominees were rejected. I see no evidence of a material difference between Republican obstruction in the Obama years and Democratic obstruction in the Bush years; the two probably all but entirely canceled each other out (and both, given the quality of the nominees we lost, are to be lamented).
The Obama factor actually driving Democratic majorities on the circuit courts is much simpler than a comparative advantage at confirming his judges: having served as President more recently, his judges haven't retired yet. Of his fifty-five appointees, just two have retired; fifty-three remain. Of Bush's sixty-two appointees, sixteen have already retired, been elevated, taken senior status, or died; forty-six remain. Seven took senior status or retired in the Obama years, and Obama replaced four of them. This drop-off, which Obama's appointees have yet to embark on, has given Obama's slate of nominees a numerical advantage over Bush's that Harry Reid and Chuck Schumer could not.
Finally, Republicans are partly the unlucky victims of judicial maldistribution. A chart in Calabresi's paper shows that by 2016, before Trump took office, Republican appointees still held 44% of the filled active judgeships on the circuit courts. (As of today, that's up to 46%; Trump and his nine appointees are already moving the needle towards parity, though half have replaced Republican appointees who retired post-election.) However, as of the same date Republican appointees held majorities in only four of the thirteen circuits. How come? Because their judges were inefficiently distributed. Republican appointees held supermajorities in several circuits, while Democratic appointees held majorities everywhere else.
For example, Republican appointees in 2016 still held eight of the nine active non-vacant judgeships on the Eighth Circuit, because, whether due to luck or other factors, only one Eighth Circuit judge retired in the Obama years until 2015, by which time the Senate was closed for judicial nominations. By contrast, George W. Bush made six appointments to the relatively small Eighth Circuit, four of which are in active service still. This is great for Republican control of the Eighth Circuit, but Republicans would have been better off had more judges retired from the Eighth Circuit in the Obama years and fewer retired elsewhere, or if fewer judges had retired from the Eighth Circuit in the Bush years and more retired elsewhere.
Besides the Eighth Circuit, as of 2016 Republican appointees also held two thirds of the filled seats in the Sixth and Seventh Circuits and nearly two thirds in the Fifth. These supermajorities were a function of vacancy timing and other chance factors: eight Bush appointments in the Sixth to Obama's two, two Bush appointments in the Seventh to Obama's one (partly thanks to Wisconsin's Republican Senator keeping a vacancy open for seven years of Obama's presidency) and the unusual vitality of Reagan's Seventh Circuit appointees, and seven Bush appointments in the Fifth to Obama's three (partly a function of Texas's Senators barring Obama from making appointments to old vacancies), plus the continued active service of two unusually young Reagan appointees.
Here too, Obama was simply given unusually few chances to appoint judges, and when he had opportunities, they sometimes were blocked; Bush, on the other hand, was given a disproportionate abundance of opportunities. In most of the other circuits, however, Obama appointees built slim Democrat-appointee majorities. It isn't, for the most part, Democrats' fault that the vacancies Bush got to fill were more geographically concentrated than Obama's; it just happened that way. If a fraction of Bush's twenty-one appointments to the Fifth, Sixth, and Eighth Circuits had ended up on the closely divided First, Third and Tenth Circuits instead, Democratic appointees would only control six of thirteen circuits instead of nine.
Republican appointees' minority position on most of the circuit courts has nothing to do, then, with President Carter's "court-packing," which ceased to influence the composition of the courts long ago, or with Schumer and Reid's "court-packing," which was counterbalanced by Republican filibustering in Obama's first term, Republican blue-slipping, and all-out Republican obstruction in the last quarter of Obama's presidency. Rather, it's a function of the death and retirement of Nixon, Ford, Reagan, G.H.W. Bush, and even G.W. Bush appointees; Democratic dominance of the White House in the years that actually matter to circuit-court composition, the recent ones; and bad breaks in the geographical concentration of vacancies in the G.W. Bush years and geographical diffusion of vacancies in the Obama years.
All of this should be ameliorated to a large degree in Trump's first term, and should be subsumed if the Republicans hold the White House in 2020. Thirty-five aging Clinton appointees, plus one Carter appointee, remain in active service; so do fifty-three younger Obama appointees. If history is any precedent, in eight years, twenty-four years out from the end of Clinton's presidency, there will be very few active Clinton appointees left, as there were very few Carter appointees left twenty-four years after the end of his presidency (nine out of fifty-six), and few Reagan appointees left twenty-four years after the end of his presidency (seventeen out of eighty-three). And if history is any precedent, a fair number of Obama appointees will have retired in eight years, just as over a quarter of G.W. Bush appointees have retired to date.
Of course, Clinton and Obama appointees may well decline to retire during Trump's presidency. So far, Trump has filled four vacancies created during his presidency; each of those vacancies was created by the retirement or elevation of a Republican appointee. Of the other six post-election vacancies Trump has made nominations for, all but two of those were created by the retirement of a Republican appointee, and one of the Democrat-appointee retirements, Judge Frank Hull, is quite conservative, while the other is eighty-three years old. Clinton and Obama appointees do not seem interested in having Trump fill their seats, while Bush and Reagan appointees seem very interested. That, however, is not court-packing, whatever else it might be called. And in any case, the Clinton appointees cannot serve forever; the average age of the active Clinton appointees (excluding Hull, who will retire upon the appointment of a successor) is seventy, and many are much older than that.
In sum, the Obama judicial legacy that Calabresi wants to undo is not the fruit of court-packing, but the natural (though artificially slight, thanks to Republican maneuvering) fruit of a recent two-term presidency. To undo it, Republicans need only do what Democrats did to undo the Reagan/G.H.W. Bush judicial legacy, or the G.W. Bush legacy: namely, win multiple elections. Barely veiled attempts at court-packing historically haven't been conducive to that goal. But if Republicans want to take political advice from someone whose idea of political salesmanship is to complain about invisible hordes of Carter appointees swamping the rightful Nixon/Ford majority, they could do worse things, I guess.
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