'If You Can Keep It': The Future Of The Federal Judiciary
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Last week, the House passed a bill to create 63 new permanent judgeships. Case backlogs and delays have had many lawmakers saying we need more federal judges now. If the bill becomes law, President-elect Trump would have 22 new judgeships to fill. The bill originally had bipartisan support, but President Biden vowed last week to veto it with the support of many Democrats. Here's Senate Minority Leader Mitch McConnell reacting on the Senate floor last week.

It's hard to imagine a justification for blocking the Judges Act that doesn't smack of naked partisanship. It's almost inconceivable that a lame duck president would consider vetoing such an obviously prudential step for any reason.

Trump's federal judge appointments in his first term far outpaced other recent presidents. Now Biden has made his mark, too, surpassing that number. Biden has also put more judges of color on the bench than any of his predecessors. Federal judges almost always serve life terms, meaning each of these picks can have lasting consequences for Americans. So,

So for this week's installment of If You Can Keep It, we're going to look back and look ahead at our federal judiciary with the help of three guests. I'm Jen White. You're listening to the 1A Podcast, where we get to the heart of the story. We've got a lot to get into after the break. Stay with us.

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Now let's meet our guests. Mary McCord is Executive Director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She's also a former Acting Assistant Attorney General of National Security at the Department of Justice. Mary, welcome back.

Thanks for having me, Jen. Joining me in studio is Jeff Rosen. He's president and CEO of the National Constitution Center. Jeff, thanks for joining us. Great to be here. And finally, Josh Gerstein, senior legal affairs reporter for Political. Josh, welcome to the program. Hey, Jen. Good to be with you. So, Josh, let's just start with some basics here. What kinds of cases do federal judges hear?

Well, Jen, I mean, just about any case that makes the news very often comes out of federal court and is decided by federal judges. We should probably say the bulk of the work doesn't draw a lot of headlines. They hear a lot of major business disputes where there's a substantial amount of money at stake, and they hear a lot of cases bought by individuals, lawyers.

who, you know, say claim discrimination in federal employment. But they also hear these higher profile cases, a lot of civil rights cases. If people think back to the COVID era, all the cases around vaccine mandates, mask mandates, these were often brought in federal court. If folks think about

the recent ruling ending affirmative action in higher education, the product of federal judges all the way up and down the chain, current court battles over transgender rights. That goes into federal court. And then all kinds of other disputes over various government policies, especially U.S. government policies on issues like abortion, immigration, environment,

climate change. Almost all these things are being litigated in federal courts. And I think a lot of people would say increasingly aggressively litigated in federal courts, sometimes often more action in court than we see up on Capitol Hill on some of these subjects. Mary, walk us through the process of a federal judge getting to the bench.

- Sure, so federal judges are nominated to fill vacancies when a judge on the bench, each court has an allotted number of judges and that's why we've had this bill, the Judges Act that was recently passed by the Senate and House, the one you were talking about at the intro, to actually expand for the first time in quite a few years, the number of judges in each court. But right now that's a set number. So when there is a vacancy, the president nominates someone,

that person has been vetted before that nomination, both within the White House and also, you know, usually there's something, they seek the support of the senators in the home state of that particular nominee. And that nominee then goes, of course, to the Senate through the process of advice and consent and must be confirmed by the Senate. And so we have seen in

the last few administrations, you know, and it was interesting listening to Senator McConnell talk about President Biden's suggestion that he may veto this Judges Act and sort of expressing

surprised that that would happen. And we're talking about a senator who at the end of a previous administration, President Obama's administration blocked President Obama's nominee for the Supreme Court, which was Merrick Garland, even though there was almost a year before the end of that administration. And so I use that as an example because we have seen the politicization of judicial nominations

over these last several presidencies. And so even this term, as President Biden's term has come to an end, there were many, many nominees sitting there waiting for their confirmation hearings. And finally, the senators reached a deal where they would agree, the Republicans and the Democrats would agree to push through a certain number of these, but not all of them,

before the end of the term. So unfortunately, used to be, I can remember those sort of calcium days where most nominees would get, would pass by like 99 to 1 or 98 to 2. And recently, the votes split very closely on partisan lines. Jeff, take us back to Trump's first term. What was his approach to filling federal judgeships?

It was disciplined and focused. He was determined to appoint conservative judges. He said during his campaign that he would take his list of Supreme Court nominees from those suggested by the Federalist Society, and he did exactly that. He broadly appointed well-qualified, young conservative judges. All told, by the end of his first term, he nominated 281 judges and got...

234 confirmations by the end of his term. Biden's numbers are similar. He's nominated 241 judges so far. 233 have been confirmed. Unlike

President Trump, who focused on conservative judges who were well-respected and vetted by the Federalist Society, President Biden, as you noted, has focused more on diversity. And he has nominated many judges of color and women. And as a result—

has, I think, nominated more minorities and people of color than any president, certainly since Jimmy Carter, who made that his focus in the 70s. So that's been President Trump's approach.

It's striking that President Trump's judicial nominees did check him in important questions during his first term. Of the 86 judges who considered January 6th-related charges, all of them rejected false claims of election fraud. And there were other important cases, including rejecting arguments of complete civil immunity for President Trump, as well as the Supreme Court famously rejecting

his travel ban, where some judges appointed by President Trump did check him during his first term. You mentioned President Biden's decision to prioritize putting judges of color on the bench, especially Black women. And of course, in 2022, he nominated Justice Kataji Brown Jackson, making her the first Black woman on the Supreme Court. But Mary, he also increased diversity of expertise, adding more public defenders, for instance. What was behind that approach?

Well, you know, I think that President Biden was pretty clear when he came into office and with his nomination and the appointment of Merrick Garland to lead the Department of Justice that they really wanted to sort of restore some faith in the integrity of the justice system. And the justice system is...

involves two different branches of government. It involves obviously the executive branch and the actual department of judges and federal defenders. People might not all realize that federal public defenders actually work for the federal government, just like federal prosecutors do. And so it was important to President Biden and was important, I think, to Merrick Garland to see that both the prosecutors and the defenders were representative of the community that they are prosecuting and defending.

And the other important component, of course, of our justice system are the judges themselves. And so similarly, I think President Biden wanted it to be a priority to make sure that those who are making decisions that impact people's lives dramatically, Josh mentioned a lot of civil cases, but recall as well that federal judges preside over many, many criminal trials too. If it's a violation of federal criminal law, that case is brought in federal court. And

The president wanted to ensure that the judges that are responsible for those cases and responsible for ensuring due process to all criminal and civil litigants are representative of America. So, Josh, when we look at the appointments by President Biden and prior to that by President-elect Trump, did those appointments have any significant impact on the court system and how it operated? Did it change anything?

Well, I mean, I think every time a president gets a chance to put his stamp on the judiciary, it does shift the court system in one direction or another. Certainly, the Federalist Society, who Jeff mentioned President Trump relied on for recommendations in his first term, but is not really expected to rely on as much anymore.

in his second term, has a certain outlook on the world, on the role of judges and the courts. And we have seen that play out through a number of Trump nominees issuing decisions that have been controversial. One that immediately comes to mind is one Trump nominee who blocked

or attempted to block the availability of a key component of the abortion pill in the United States in a case that went all the way to the Supreme Court. So we do see, I think, the selection of judges having an impact in both directions when presidents make those choices. We have to pause for a quick moment here, but coming up, why members of both parties are worried about delays in our federal courts and what can be done. That's just ahead.

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Let's get back into the conversation with this message we got from Anna, who says, your guests said that Trump selected qualified conservative judges, but can you please point out how unqualified so many of them were? Mary, your thoughts?

Yeah, I mean, I think there are a few people. Historically, the American Bar Association has sort of given a grading and a report on nominees about whether they're qualified or not. And there were sort of a remarkable number of people who Donald Trump nominated who did not meet the qualifications, according to the ABA. Now, I think a few of those did end up

but others made it through. And then, of course, we've seen, and this is not completely a function of the judges, I guess, but we have seen criticism that I think is good criticism of judicial shopping, particularly to file cases in single-judge districts. Now, no full district is a single judge, but some large districts have cases

separate divisions and separate courthouses within them. And there are some places where there's just one judge. And this happens to be the case in Texas, for example, and I'm not going to name any names. I don't want to put a target on the back of any judge.

But there have been certainly conservative cases, Republicans bringing conservative cases in that district specifically because they want that judge to be the one ruling. And oftentimes that judge has ruled favorably. And I think Josh mentioned one of those examples earlier. Jeff, when we talk about judges being put up who don't meet those qualifications, how has the Senate typically responded?

Well, the question of what's a qualification is contested now that things have become so political. People a generation ago might defer to the American Bar Association's estimate of whether or not someone is qualified. But now...

both sides feel their judges are qualified and don't like the other side. So in some ways, the more objective measure is partisanship. Have we seen more partisan splits on the court? And Mary made a very important point that by and large, appellate judges take their job seriously. They disagree far less than the Supreme Court. They're unanimous in many cases. There's a lot of

bipartisan consensus. And the judiciary of all of our institutions of government, especially the lower court appellate and district court judges, is

really have avoided the partisan splits that we see in Congress and the presidency. However, the New York Times ran a piece in 2021 reviewing a survey by two law professors who found that from 2018 to 2020, there was a dramatic and statistically significant spike in both partisan splits and partisan reversals.

when it came to what are called on-bank cases, when all the active judges on a federal appellate court reconsidered the decisions of their colleagues. And by partisan splits, they meant divisions between judges appointed by presidents of both parties. And that was significant. And we didn't see that in the 60s, 70s, and 80s to the same degree. So there has been some increase in partisanship on the lower courts, but—

Nevertheless, let's really emphasize Mary's important point. By and large, we are not seeing the partisanship on lower courts that we did on the Supreme Court. And that's the ultimate answer to whether or not these judges are qualified. By and large, judges appointed by Presidents Trump and President Biden have been deliberating with each other and reaching decisions that transcend politics. Well, I want to turn to legislation. As we mentioned earlier, there's this effort to expand the federal court system through the Judges Act. And

And Biden has said he will veto that act as of now. But the Federal Judges Association and the Federal Bar Association put out a statement asking him to pass it, saying, quote, the lack of new judgeships has contributed to profound delays in the resolution of cases and serious access to justice concerns. Josh, what do we know about these delays and what they mean for the American people?

Well, there are a lot of places in the country where the number of judgeships has not kept up with growth in population. There are also places in the country that tend to, because of where they are, I'm thinking of places like Northern California where the tech industry is based or

perhaps Delaware that sees a lot of business litigation that tend to see more and more litigation. And if they don't have a commensurate increase in the number of judges, and I think it's been somewhere on the order of 30 years or so since we've really tried to increase the number of judges across the board, you do begin to see cases being delayed, which

may not matter that much if it's only money at stake. But obviously, if you're talking about people's rights being violated or individuals who have some kind of job-related claim for those cases to linger for years and years is a problem. But I should point out, Jen, that one of the factors here that doesn't get discussed quite as much is that a number of the emergencies where you have

available judgeships right now that are not filled have to do with the fact that we have senators in certain states that are blocking them from being filled. I'm looking at the current list of 22 federal emergencies where judgeships have been vacant for quite a long time. 20 of the 22 are in states that have

to Republican senators. And that is because those senators have used the policies and traditions of the Senate to basically prevent President Biden from filling those vacancies. It's something that, as the polarization we're talking about has developed, we've seen both senators from both parties do this at various times. But in recent years, as the country has become more polarized, we see it becomes almost impossible for a president to appoint

judicial nominees of his choice in districts if the senators are from that state, come from the opposing party. So, Mary, how could the president-elect expand the judiciary when he returns to office, regardless of what happens with the Judges Act?

Well, you know, if this act does not get through this session, you know, it can be reinstituted, re-presented next session, and, you know, maybe Donald Trump would sign it. I suspect he would. I think it is important—

This is a very different type of expansion than what some – for people to understand, this is a very different type of expansion than what has been discussed somewhat over the last few years, which is the expansion of the Supreme Court, right? This particular act is purely about filling lower court vacancies, and it's very specific –

11 judges every two years. So it would expand over three presidential terms so that presidents potentially of different parties, although that depends on the election, of course, would each have an opportunity to nominate judges to fill these new vacancies. And they're very specific to the districts where the need is.

There has been talk about, you know, expansion of the Supreme Court. That's not being taken particularly seriously, I don't think. There's no there's nothing, you know, pending legislation that would do that. That's that's got any kind of support. And I don't think that that's anything that even President Biden has advocated for. He has talked about and others have talked about things like

term limits for the Supreme Court. So legislation, though, is what it takes for the expansion of the judgeships. And so this Judges Act is really important to that. We got this email from Warren, who is skeptical of...

of these overburdened courts. Warren writes, I'm an attorney in New Orleans. Years ago, there were too many federal judges throughout the country. Each judge's case load was very low. Has that really changed? Do we really need more federal judges now? Jeff, I'll come to you first. Well, you know, of course it's contested, but nonpartisan studies...

have suggested that civil delays are significant in some places. It remains true that expansions and contractions of the Supreme Court over time have tended to be essentially political. From Thomas Jefferson to the Grant administration, Congress has contracted the court when they want to deny presidents the ability to make seats and expanded it when they want to

By contrast, the lower court expansions have tended to be more in response to need. It was just after the founding era, right before the Civil War, that Congress created a 10th judicial circuit. Lincoln was able to appoint people to that. And

And ever since then, the big expansions of the court have tended to be in response to real increases in case law. And the last really big one was indeed during the Carter administration. What we haven't seen is an attempt to expand judges in a nonpartisan way since nominations have become so contested. And that's why even this bill, which initially had Democratic support, especially because it allowed future presidents to make appointments, has stalled and

now that President Biden lost the election. And that's what's going to make thoughtful addressing of these backlogs so difficult in the future. Now, Mary mentioned efforts to expand the Supreme Court. Democratic Senator Ron Wyden of Oregon recently introduced a bill to reform the Supreme Court specifically. And among other things, it would add six justices to the court. Here he is on KGW News. Well, over 100 years ago, America had nine justices.

And now we're, in effect, 900 percent bigger and we still have nine justices. We've got a lot of work catching up to do. Josh, are you sensing any political shifts around this conversation around expanding the Supreme Court? Or has it, to Mary's point, been sort of a political nonstarter for a while and it seems to remain that way?

Yeah, I mean, it seems like the question is really a question of timing, and that is what has bedeviled sort of all of these discussions, both about the Judges Act and the lower court judges and about the Supreme Court. People, I think, are sometimes open to suggestions of reform, but not suggestions of expansion or reform that is likely to gore their political ox. And one of the, I think, innovations or maybe genius ideas

of the design of this judges act was that it was going to play out over a period of time. Uh, we don't, did not at the time the bill was proposed, know who would be the next, uh, president. And therefore you could get Democrats and Republicans on board. Uh, this is again talking about the lower court, uh,

In fact, it was not only bipartisan, Jen. It was unanimous when it passed the Senate several months ago. It was, in fact, sponsored by Senator Coons, who's from Delaware, which is Senator Biden's home state, a friend of his, and Senator Padilla from California, which may be the bluest of our blue states. And so there really was a consensus here. I think it's just too difficult, though,

after the election takes place to persuade legislators that they should essentially hand a series of judgeships to an incoming president of another party. And that's always the decision that you end up facing when it's made at the very end of a presidency. We'll have more from our guests and from you about the federal judiciary and how our presidents and senators shape it. That's after a quick break.

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We got this message from Aaliyah who says, someone on the panel said that Trump doesn't plan on taking direction from the Federalist Society this term, but isn't the Federalist Society involved in the creation of Project 2025? And while Trump during, while on the campaign trail distanced himself from Project 2025, there are several of his cabinet picks that have ties to it. Russell Vogt, Brendan Carr, Peter Navarro. So,

Is it possible, Jeff, because that was your point, that the Federalist Society will continue to have an influence on the courts during Trump's second term?

I think it was Josh who said that the Federalist Society might not be as influential in the second term, which is a good point. The Federalist Society was not responsible for Project 2025. That was the Heritage Foundation. The Federalist Society is a thoughtful group of conservative intellectuals founded in the early 80s to transform the judiciary. And by all of our consensus—

the judges that they recommended during President Trump's first term were thoughtful, generally well-qualified judges who've been serving well. So they're not the centerpiece of the...

of project 2025 and Josh's suggestion that president Trump might be less focused on the federal society in the second term is a, is a sign of, of the concern among conservative, uh, legal elites that he may be going rogue and be more eager to reward, uh, partisans or loyalists. And, uh,

to seek judges who will be personally loyal to him rather than to broader constitutional principles. So it'll be very significant whether or not President Trump's second-term judicial nominees are as generally within the conservative mainstream as his first-term nominees were. And if they're not, that'll contribute to a big concern that people have that

that President Trump might try to use the judiciary in his second term to, for example, prosecute political enemies or to undermine the rule of law. That's going to be the big debate about the Constitution in his second term, and what kind of judges he nominates will be an important window onto which way things are going. Josh, I'll give you a chance to respond as well, since that was your statement.

Yeah. I mean, so this situation that President Trump had with the Federalist Society during his first term was very unusual. He functionally outsourced the selection of judges to the Federalist Society. And in large part, they sort of were routed through a single individual. His name was Leonard

And that was how it was run during the first term. One of the reasons we don't think that President Trump will be as deferential towards a federalist society in his second term is because he has said publicly that he was disappointed with some of his judicial picks in the first term.

I think it's fair to say that President Trump has a very transactional view of the justice system and of the role of judges, which is that he views them as obligated or expected to support his policies. They have not consistently done that. I know people may think because of, say, the ruling on immunity, uh,

in the recent criminal case that was brought against President Trump that the Supreme Court has favored him. But they may forget back in 2020, there was a lot of litigation around the election. And when it went to the Supreme Court, it was uniformly rejected. And after that, President Trump said that he was disappointed, particularly in the three nominees that he had placed on the court before. And so there is reason to think that he will use some kind of different stick

excuse me, different standard during his second term. It's not clear who will be making those choices, but I think Jeff is correct that it's far more likely that...

The litmus test in the second term isn't going to be conservatism writ large, but instead going to be loyalty to Trump and Trump ideas, or at least the absence of any statements that he might view as disloyal. That's going to be the qualification rather than some sort of broader conservative principles.

I want to get to this message we got from Greg, who says,

Two, all judges, including the Supreme Court, should be brought forward for a vote no sooner than 90 days from nomination and no longer than 120 days after nomination. Ethics and fairness matters for all sides. Jeff, I see you nodding with Greg's point here. I am. The idea of a two-thirds threshold, of course, was the norm before the elimination of the judicial filibuster, first for lower court nominees and

and that was the Democrats' decision, and then for the Supreme Court, and that was the Republicans' decision. And restoring that would require a degree of nonpartisan consensus, which prevailed for much of

Although not all of U.S. history, in the 19th century there were indeed narrowly partisan votes with judges confirmed by a single vote. And as for a required up-and-down vote, the National Constitution Center had a wonderful constitution drafting project where we convened liberal, conservative, and libertarian teams to propose amendments to the Constitution. And one amendment that got bipartisan support by all three teams was

included both 18-year term limits for Supreme Court justices and also would have required an up-and-down vote on nominees. It doesn't require confirmation, but just ensures that you can't sit forever on the nomination as part of the Senate doing its job and actually carrying out its advice and consent functions. So I think those are two great suggestions. Mary, your thoughts? I see you nodding, too.

Oh, I agree. I mean, it would necessarily take some of the gamesmanship and partisanship out of it, both the two-thirds vote and the up or down within, you know, 90 days. I mean, right now what we've seen going back to the beginning of the hour on the politicization of nominations is –

you know, we'll see parties just the, you know, majority party in the Senate will oftentimes just sit on nominations by a president of the opposing party for really extended periods of time, which is also partly why we get to the position we're in right now at the end of an administration with such a backlog. And then you have to, it becomes a, again, a whole negotiation to try to see

which judges you might be able to get through, who should have really been voted on long ago. At least two federal judges have reversed their decisions to retire since Trump's re-election. Senator McConnell responded by saying, quote, this sort of partisan behavior undermines the integrity of the judiciary. It exposes bold Democratic blue when there should only be black robes. And I'd love to get each of your reactions because what I'm wondering is,

Within the judiciary itself, whether there is concern about maintaining the integrity of the courts, whether they too see the politicization and are making decisions based on a concern that there's a distrust in the system and that's reflected in polling. Mary, I'll come to you first and then you, Josh.

So I think, you know, unfortunately, by making those announcements, they're necessarily setting themselves up for the types of attacks that Senator McConnell is leveling. I mean, as I indicated earlier, it's very rich of him, of all people, to level those types of attacks, given his behavior when he was responsible for bringing nominations to the floor in past administrations. But, um,

But it's unfortunate that that's the case. Now, I have not spoken to those judges, and it could be multiple factors going into their decisions, but it's certainly – and these are personal decisions that judges make, and they might have had an expectation of something different.

and have decided, given the results of the election, that they will stick around a little bit longer. They could also be thinking about things like this Judges Act and the fact that it might be that there is not an expansion, and by retiring, they will be putting their particular districts in even worse shape in terms of the backlog, although I have not matched up the judges who've made these announcements with the districts that have the greatest need, so it could be that's not an issue.

As a human, I understand where they're coming from and their concerns, but it's just difficult today to do those kind of things and not just be attacked that this is political. Josh, your thoughts?

Well, what I would say is that the timing of judges and justices retiring has often had political overtones. You know, a recent example would be Justice Anthony Kennedy retiring from the Supreme Court. It's been widely reported that he sort of timed that. He wanted to have a Republican pick his replacement and, in fact,

You know, may have had his eye on particular nominees that might step in, and sometimes they're sort of winking and nodding back and forth about who might replace who. And that's really not that unusual. It's pretty common, in fact, that a lot of judges announce their retirement or that they're going to take senior status on the bench once.

while a president of the same party who appointed that judge is in power. So, you know, what Senator McConnell is objecting to is

this process that's already somewhat politicized, that if you withdraw your intention to retire, that shows that the only reason you were doing it is for politics. And maybe that is the only reason. Maybe it isn't. Even the unretirement, Senator McConnell acknowledged there are a couple of previous instances where judges had unretired. So I, you know, I do think it probably contributes to the sense that all judges are

acting for political reasons. But on the other hand, the process of how people get on the bench and even how they come off has already had a fair amount of politics to do with it. I feel a little bit like it's Senator McConnell saying, you know, he's shocked to see that there's gambling going on in the casino. Jeff, I'll give you the last word here.

Just that the concern that lower court judges have about the nonpartisan legitimacy of the judiciary is important. And we've been talking about the ways the confirmation process has been politicized. It's important to note that by and large, lower court judges do their jobs in an

non-partisan way, and they don't divide on partisan grounds in most cases. They thoughtfully apply the rule of law. They're willing to check the presidents who appointed them. For all of the politicization of our country right now, the federal judiciary is a shining light, by and large, of reason.

and I'm just going to express thanks to all the lower court judges for all their great service to the USA. Well, that's Jeff Rosen. He's president and CEO of the National Constitution Center. Also with us today, Josh Gerstein, senior legal affairs reporter for Politico, and Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. Thanks to you all. Today's producer was Alexandra Bote.

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