- The Washington Times - Monday, September 28, 2009

Democrats aren’t satisfied with the one-party state in which they control Congress and the White House and can politicize the Justice Department and take over the banking and automotive industries. Now liberal Democrats are pushing a court-packing scheme as well.

A subcommittee of the Senate Judiciary Committee will hold a hearing Wednesday on the proposed Federal Judgeship Act of 2009 (S. 1653), which would create positions for 63 new federal judges - 51 in federal district courts and 12 in appeals courts. This proposal is nothing less than a sneaky equivalent of what President Franklin D. Roosevelt tried with his infamous court-packing power grab on the Supreme Court in 1937. The only slight difference is that this attempt is more under the radar.

The Supreme Court has been choosing to consider fewer cases each year. This means the lower courts provide the final disposition for a larger percentage of controversies than ever before. Packing those courts with new, loyal liberals can thus have a huge effect on legal issues without the high profile - and public backlash - of unpopular Supreme Court decisions and fringe appointments to the high court.

Oh, sure, some circuits have a much larger current caseload per judicial panel than others. The 2nd Circuit Court of Appeals, for instance, has 1,314 cases per panel, compared to just 607 cases per panel for the 7th Circuit. Then again, the 2nd Circuit already has four vacancies - available seats on its bench that the president and Senate just haven’t gotten around to filling yet. The Federal Judgeship Act of 2009 would add two new seats to that circuit before even filling the existing four vacancies. That makes no sense.

Likewise with the 1st, 3rd, 6th, 8th and 9th Circuits. This new scheme would provide 10 new judgeships combined, even though seven vacancies exist on those circuits. Those vacancies exist almost entirely because Democrats smeared and stonewalled so many of President George W. Bush’s nominees rather than allowing them to go to the Senate floor for a vote. To create even more positions for Democrats to fill when current high caseloads exist in part because of Democratic intransigence would be like rewarding card sharks for stacking the deck.

Here’s a thought: If Congress really thinks the federal courts need more judgeships, why not write the law so that the new seats don’t open up until after the next presidential election? That way, nobody would know which political side would benefit, and the assessment of how many new seats are needed and where would be based on merit alone rather than on partisan political considerations.