The Republican Study Committee Looks to Reform the Courts
The proposed reforms touch on a number of policy topics, including restraining executive rulemaking authority and changing how federal employees are hired and removed. Interestingly, though, the RSC also proposed significant changes to the federal courts.
The RSC’s arguments for court reform are straightforward. The report contends that “[w]hen courts are unable to efficiently administer justice, the integrity of America’s rule of law is put at risk.” The RSC’s proposed court reforms, therefore, focused on “virtues of efficiency and accountability.”
The report’s overall aim is good: increasing the efficiency and accountability of the federal court system. But while several of the report’s proposed judicial reforms are potentially good policies, many are dead on arrival politically.
For instance, one proposed change seeks to divide the Ninth Circuit Court of Appeals. The largest circuit court in the nation, the Ninth Circuit covers nine Western states, two territories, 65 million people and the largest case backlog in the country. The nonpolitical arguments for splitting up the circuit are persuasive. As Ninth Circuit Judge Diarmuid O’Scannlain has argued, the “sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, and our clarity.”
But given the Ninth Circuit’s historical (and often inflated) reputation as a liberal-friendly court, attempts to geographically divide the court are often seen as partisan attacks on judicial independence. Splitting districts is also incredibly rare, having happened only twice before. Moreover, the administrative hurdle would be monumental and would require significant time and expense. All this to say, splitting the Ninth Circuit anytime soon appears to be a nonstarter.
The RSC report also tackles another political hot potato: nationwide injunctions. These judicial orders are controversial for several reasons, but they are primarily decried because they often have the effect of temporarily barring the federal government from implementing a certain law or regulation in any area of the country—often beyond the ordering court’s jurisdiction.
Barring or even limiting nationwide injunctions has several complications. Most obvious is the partisan makeup of Congress. House Democrats are unlikely to support ending a judicial practice that could block some of the Trump White House’s more controversial policies. (Of course, not all hope is lost for advocates. The Supreme Court itself has shown a growing distaste for nationwide injunctions and could end the practice before Congress does.)
To the report’s credit, it does identify one area where bipartisan compromise could be reached: improving judicial capacity. In immigration courts, for instance, the report endorses hiring more judges to reduce growing case backlogs. This reform could be bipartisan. After all, it would adjudicate asylum cases more quickly and leave fewer families in legal limbo.
Growing backlogs and case delays plague more than immigration courts; they also impact many district and circuit courts scattered throughout the country. The reason is two-fold: Due to retirements, there are dozens of vacancies that have not been filled, and even in places without empty seats, growing populations and caseloads increase burdens on judges. To ameliorate this, the Judicial Conference—the national policymaking body for the federal courts—has requested that Congress create 70 new permanent judgeships.
But new judgeships create a political wrinkle. Although members of Congress have historically supported increasing judgeships, enthusiasm often wanes when the president is not a member of the party that controls Congress. But compromise is possible. In the last Congress, the House Judiciary Committee, chaired by Rep. Bob Goodlatte (R-Va.) voted overwhelmingly to create dozens of new federal judgeships. The catch? The new seats would not be open until after the next presidential election.
Fortunately, other creative solutions exist. For example, beyond slowly adding new seats across different administrations, Congress could appropriate funds for more federal magistrate judges. The federal magistrate judge system, already wildly popular in federal courts, sidesteps the politics of judicial confirmations while temporarily improving the capacity of the courts they serve. Vitally, magistrate judges are not nominated by the president. Instead, they are hired by judges in the courts they serve. What’s more, they are term-limited (and can be removed by the hiring judges) and offer substantial relief to overburdened district courts.
The RSC should be applauded for examining ways to make federal courts more productive. Although some proposals are not politically feasible at the moment, Congress should nonetheless continue to look to new, creative and bipartisan measures to improve the efficiency of the federal courts.
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