Draining ‘the Swamp’ Through the Appellate Court System

Published May 25, 2017

Steve Bannon, a top White House adviser, has famously stated that he wants to deconstruct the “administrative state.” For decades, this has been a goal of true conservatives, who believe that the federal government is out of control and engaged in broad and expanding unconstitutional endeavors. A federal government that wants to extend its tentacles into every aspect of American life (the size of your commode?) is in violation not only of the written constitution but good sense. Such a federal government orientation saps the legal foundation of the country and undermines the whole concept of America.

In a recent article, I have proposed how to roll government back through the efforts of a constitutionally (originalist view) driven president and U.S. Supreme Court (SCOTUS). It would require a Supreme Court with more appointees like Neil Gorsuch. And, then, they would have to act to reverse the progressive view of the meaning of the Constitution. I see no possible rollback in concert with Congress.

There is almost no desire to substantially reduce the size of government by defining the constitutionally authorized limits of government and pushing government back. The Trump administration cannot seem to make up its mind. Kushner believes that government can be reformed and made efficient. Bannon believes that government efficiency is an oxymoron. Pruitt sits as EPA Administrator, but seems unable to act. Any move by President Donald Trump to rollback government is immediately thwarted by an end run to the courts or a capitulation to Congress (recent spending bill). There will be no real comprehensive relief from SCOTUS that could roll government back and box Congress in, until additional seats on the Court move from progressive to originalist. While this provides glorious hope, the change may be some years away. Meanwhile, there is another possible approach that could be very helpful. Let’s completely overhaul the appellate court system.

The Appellate system would have to be reformed even if the SCOTUS became originalist with recurring 7-2 decisions. The SCOTUS cannot hear every case. They have to choose cases to be heard and the appeals courts give them a basis for choice. A good and clear appellate decision needs no full review by SCOTUS. So, the appeals courts act as a direct subcomponent of SCOTUS, and effectively SCOTUS approves appeals decisions or chooses to consider a necessary case.

Before the SCOTUS reaches a full-blown reverse force, a redo of appeals would be a step toward freeing Trump to act. There is no way to remove all the progressive judges at the district level. But if district judges were controlled by the new appeals system, Trump/Bannon would have a shot at the administrative state sooner than later. Of course, if we had the originalist court in place, SCOTUS could generally control the appeals courts through SCOTUS decisions.

The appeals courts have 179 judgeships (20 slots vacant) divided among the thirteen courts. There is nothing magic about the number thirteen. The number of appeals courts has changed over the decades going back to the Judiciary Act of 1892 that established the first nine appeals courts. Also, there is nothing that requires an appeals court to be located in a certain city—the 9th Court of Appeals in San Francisco, for example.

Of the 179 judges, Obama appointed 55 of which 53 remain. The breakdown of presidential appointments currently favors Democrat appointees overall, but if you go back thru the years you will see that Republican appointees had greater dominance in some periods than the current Democrat dominance. If the Republicans were dominant in the past, why did they achieve so little? Because many Republican appointees either had no originalist commitment or changed their minds about what the constitution meant.

What should the president and Congress do to reform the appeals courts and remove the progressive or get-along judges, who violate the true meaning of the Constitution? We can’t impeach them; there are too many. There seem to be two possibilities. increase judgeships with the aim being to speed the appellate process and ultimately promote justice being served. Or abolish the appeals courts and then recreate them for the same reason cited above. Congress clearly has the power to do either.

Increase the number of judgeships from 179 to 250. Trump could then immediately appoint 91 judges (20 vacant and 71 new). This would be enough to swing the appeals courts quickly. Other slots would become available thru retirement during the first Trump term of office. No one could reasonable argue that 250 is too large a number given the growth in case load and therefore that benefits would clearly outweigh the costs.

Or the thirteen appeals courts could be abolished and replaced by five courts. All 179 judgeships would cease to exist. The slots would be filled by originalists. There would be a Northern, Eastern, Western, Southern and Circuit Court. Location: Des Moines, Harrisburg, Salt Lake City, Little Rock and Richmond, respectively. Location would be a bow to the non-elitist nature of our country and its geographic expanse.

What are the chances of any of this working? What were the chances that Trump would be president or that BREXIT would be approved. Now is the time to think big and act!

With a reconstituted appeals court system, the Washington, DC swamp could be drained sooner than later, at least in part.