The appointment of Justice Neil Gorsuch to the Supreme Court and President Trump’s appointments to the lower federal courts have been superb. But Trump has appointed only eight of 169 federal appeals-court judges, with only a few vacancies left to be filled. This is not even remotely a takeover of the federal courts of appeals. It at most constitutes a pin-prick.
To truly have an effect on the judicial branch, the Republican Congress needs to appropriate funds to increase the size of the lower federal courts. Our suggestion, spelled out more fully in our new paper, would be to boost the total number of judges by roughly 33 percent, as President Jimmy Carter and a Democratic Congress did in the 1970s. If the Republicans increase the size of the lower federal courts today by the same percentage that Jimmy Carter and his Democratic Congress did in the 1970s, there can be no legitimate complaint from present-day Democrats about court-packing.
And as it happens, the judiciary desperately needs more federal judges, because the caseload has grown immensely — by about a third in the district courts and nearly half in the circuit courts — since the last bill creating new judgeships was passed in 1990.