The Republican grip on the judiciary is an existential crisis for the progressive agenda—or it would be if progressives had a better understanding of what conservative judges do for a living. As it is, their interest rarely seems to stray much beyond the Supreme Court. That’s a serious matter. But Trump’s wholesale reshaping of the lower courts is at least as troubling. These courts are the first responders to attacks on our basic freedoms and human rights. They are the places where policies go to be debated, held up, or torn down. And as things stand now, most progressive policies and many of the immediate goals of the Biden administration won’t survive their first contact with the reality of these revamped courts.
This isn’t speculation; it’s already happening. Consider Biden’s number one priority: Covid-19 relief. The Centers for Disease Control and Prevention enacted a new moratorium on evictions after the initial one, passed through the CARES Act, expired last summer. But in late February, a single Trump-appointed district court judge, a 40-year-old who graduated from law school in 2005, scuttled the whole thing. He struck down the CDC’s order, and while his opinion is embarrassingly wrong and illogical (he basically said that renting a house is not commerce, as understood through the commerce clause in the Constitution, and therefore can’t be regulated by the federal government, which is like me saying this article doesn’t qualify as protected speech unless I personally read it aloud), it doesn’t matter. He’s appointed for life, and he gets to be wrong and illogical about the law until some other judge overrules him.
The problem is that overruling a judge takes time. . . A bad ruling from a federal judge must first be appealed to one of the 13 courts of appeals, which are regional federal courts spread throughout the country. These courts are supposed to overturn cases only when there’s been a clear error in law (I believe “not knowing what commerce is” would apply). Most disputes about federal law or policy will never get further than a court of appeals. The Supreme Court hears only 100 to 150 cases out of the 7,000 appealed to it every year. This means that for the overwhelming majority, the lower court ruling is final.
In the meantime, those lower courts can act with lightning speed to stop an entire federal law in its tracks. There are 677 district court judges, and every one of them has the power to issue temporary restraining orders (or TROs) blocking the implementation of federal legislation until a full trial can be held about the law or policy. . . .
The courts are the most critical pillar in the Republican scheme to rig elections. Red-state governments pass voter suppression laws knowing they’ll be upheld by courts that conservatives control. . . .
. . . Biden is going to have to work outside of the box left for him by McConnell if he wants to secure democratic self-government. And he is going to have to work quickly.
If he doesn’t, the Republicans’ voter suppression efforts will likely enable them to retake the Senate in 2022 and the White House in 2024. . . .
This gives Biden a very short time to capitalize on the Democratic majority . . .
Happily, there is a solution, and that solution is to expand the lower courts. . . .
. . . We need more judges.
The Democrats have the facts on their side (the courts are overworked), the law on their side (adding judges is something Congress can do), and right on their side (diversifying the bench is a good thing to do). They also have power on their side (they control the House, the Senate, and the White House). The only thing Democrats don’t have is the will. . . .