South Bend Mayor Pete Buttigieg has made headlines for endorsing a plan to expand and restructure the U.S. Supreme Court, an issue he has discussed more often than other candidates running for president. The topic may strike a chord with many activists; a national poll commissioned in April by Demand Justice found that most Democrats likely to participate in the 2020 primaries disapprove of the job the Supreme Court is doing.
Bleeding Heartland asked Buttigieg more broadly about potential changes to the federal judiciary in a 15-minute telephone interview on June 7.
Since most federal cases don’t reach the Supreme Court, I started with the courts that resolve most legal disputes. The Judicial Conference, a policy-making body for the federal court system, has for years recommended increasing the number of judgeships to help courts cope with their increasing caseload. The plan calls for five new slots on U.S. Circuit Courts and 65 new District Court positions around the country (one of those would be in the Northern District of Iowa). Would Buttigieg support the idea?
I don’t have a considered view on that, but I certainly think it’s the right time to be asking these questions.
You know, we’ve gotten locked in certain structures and certain numbers, so much so that I think we’ve come to assume that they’re immutable. This is true of everything from the size of the U.S. House of Representatives to the make-up of the current U.S. Supreme Court, and it follows that there are other areas across our federal judiciary that deserve a look.
So you know, I don’t know that I’m ready to weigh in on what I think the optimal number would be, but we do know that there’s a lot of evidence that the system’s ready for a tune-up, and while the Supreme Court’s getting the most attention, it’s certainly not the only place in the judiciary that’s probably fallen out of step with the times.
President Barack Obama tried to work with Senator Orrin Hatch and other key Republicans to choose judges who would be vaguely acceptable to them. Assuming the GOP maintains control of the U.S. Senate, does Buttigieg see the president’s role as working with Republicans in a similar way, to try to get more judges through? Or does he think the president should nominate the most progressive qualified people for judgeships, and let the chips fall?
You know, working with Republicans only works if you can do it in good faith. And I think what we learned from, you know, certainly things like Mitch McConnell saying that they would push through nominees in 2020, when just two years ago they made it a matter of principle, or three years ago, they made it a matter of principle that you can’t have a nomination get confirmed during an election year.
It makes it clear that at this point, they’re not even pretending that they’re in good faith. And unless that fundamental dynamic changes among Senate Republicans, it’s going to be very difficult to approach them in the spirit of compromise and fair play and expect anything other than to be taken advantage of.
If the Democrats take control of the Senate, would Buttigieg be in favor of reinstating the filibuster for Supreme Court nominees or other judicial appointments, or would he prefer going with the new normal, that you only need 51 votes to confirm any judge?
I think the horse is out of the barn on that, and if anything, the real action’s going to move toward the question of whether the filibuster can and should be preserved at all.
You know, what we have to ask ourselves, I think, just zooming out a little bit, is when we’re considering any of these norms, especially things like Senate rules, that are sometimes so locked in that we think they’re laws. They’re not. You know, when are the norms actually doing good, and when are we doing things just because we’ve always done it that way? And we really should be oriented more toward the future and saying okay, what’s a good normal that we want to work toward, versus negotiating between the present.
Part of the old normal was that the president worked with home-state senators to fill vacancies on the federal bench. For instance, for a position in the southern District Court for Iowa, President Obama chose from a list of three names provided by Senator Tom Harkin. Should the president be constrained by recommendations from home-state senators?
I think there is something appealing about that custom, because it shows regard for the relationship that a senator has with their region. But I think, as with every other norm in a season when norms are being revisited, it should be held up to a certain amount of scrutiny. I think the real question is, is that in the public interest?
So, I guess I would view it in much the same way I do my own more specific and local appointment powers back home [in South Bend]. Which is, you know, if there are many qualified people, then it makes sense as part of your sorting process to empower others to help identify or support or even filter some of your choices. But only if you’re confident that that won’t ever run counter to your duty to appoint somebody who will be very well-suited to the role.
Some have argued that the pool judicial nominees are drawn from has become too narrow. In past decades, presidents were more willing to cast a wider net to look for people who could bring a different kind of experience to the court. What are Buttigieg’s thoughts on that?
I think it’s another example of something we should revisit. Look, I’m not sure there’s a shortage of talent on the bench. But if the existing bench has become skewed, especially because of the politics of the last couple decades around judicial appointments, then that could be a good moment to pull in some, some less customary sources. Still making sure that people are qualified. But you know, the sad truth is there are people outside the proverbial system who are available to be considered who are quite a bit more qualified than some of the people we’re seeing appointed by this administration.
Not only in federal courts, but also in state courts, we see that a large number of judges are former prosecutors, whereas a much smaller number are former criminal defense attorneys or public defenders. Does Buttigieg see that as an imbalance that needs to be corrected, or does he have a position on that?
I’d certainly be attracted to establishing more of a balance. That being said, I would also think about the problem a little bit upstream of that, which is, that I think people who are motivated to make sure that there is justice for defendants, who are early in their careers, will be drawn toward roles like being public defenders. I think actually people like that should be among those who consider careers as prosecutors.
You know, so often, if you look at things like the history of the Innocence Project, a lot depends on whether you have a fair-minded DA [district attorney]. And so, while it might seem more natural or more kind of tribally cleaner, for a progressive-minded person involved in the justice system or in law to be always on the, you know, in the kind of defendant’s side of the courtroom, I think having somebody who is justice-minded, having people who are forward-leaning, thinking about things like restorative justice, having them go into the prosecutorial side would probably do a lot of good too.
Moving to the Supreme Court, a group called Fix the Court has proposed 18-year term limits for justices, with each president getting two Supreme Court nominations: one in the first year of the term and the other in the third year. Has Buttigieg looked at that proposal?
Yeah, I think it solves some problems and creates others. So the good news, of course, is that it creates a regular rhythm, it probably evens out some of the political considerations. It keeps you from having an appointment–it basically deals with the sort of unfairness associated with appointments being people of different ages. And it spares you the sometimes unseemly spectacle of people seeming to want to defer their departure from the bench, or their departure from this life, based on the political calendar. And so for all of those reasons, I understand why it’s attractive.
It does, though, create a new set of problems. One of which is the prospect of appointees entertaining the thought of a career after their time on the bench. And so, if you’re going to do it, you would want to do it, I think, with a norm or even a rule that precludes that sort of thing, that kind of establishes what is appropriate for someone to do in retirement as a former Supreme Court member.
By the way, you know, we can find some interesting historical precedent here. There was a time when it was actually customary for Supreme Court members to retire almost as a matter of course. This whole interesting little-discussed historical side note to how the whole FDR court-packing scheme evolved, which had to do with the–it was really triggered by a kind of crisis created when they inadvertently cut pensions for former judges, and it changed their incentives and motivated them to stay on the bench longer than they used to. Which was part of what led to–it wasn’t just FDR being mad because he wasn’t getting his way on the court.
But anyway, all that is to say, you know, I think that any, any of a range of options should be entertained, as long as we just agree on the basic purposes, which is reduce the political stakes, increase the number of justices who think for themselves, and do away with some of the more grotesque elements of the current appointment process. And there are certainly many ways to do that. I just hope we don’t overestimate how much benefit would come from the term limit concept. Even though I’m not, I’m not hostile to it, there are some reasons I’m not enthusiastic about it too.
Finally, I wanted to ask about the plan Buttigieg has tentatively endorsed, which would expand the Supreme Court to fifteen justices. Five would be affiliated with Democrats, five with Republicans, and then those ten would agree on the final five justices. We saw during Brett Kavanaugh’s confirmation that Democrats who were former associates wrote letters and guest columns saying how wonderful and smart he is. So if we had the ten justices choose the final five, wouldn’t the result likely be a high court club of their law school friends or former law partners?
Well, it depends how you structure it, right? So it could be that there’s kind of two layers to it, and one is that people are still nominated by a president, but then they can only be approved by a consensus of the ten. That would be one way to diminish the vulnerability to that objection.
Although, you know, the reality is that the world of judicial appointments is pretty clubby to begin with. And you know, I think it’s even the case that to the extent that there is a sense of regard that gets across the aisle, even if it’s cultivated in smaller circles, like the appellate bench or legal academia or the private sector, that it still could do some good relative to the world we’re in now, which is so tribal. Because you know, there is something to be said for the fact that–not in an unfair, exclusionary way–but the fact that you could have people who have relationships across the aisle. The loss of that, I think, has certainly worsened our political life.
And to the extent that people can learn through relationships–you know, again, hopefully they’re formed in an inclusive setting–but that people can learn from relationships that are outside the political context to view one another as human beings, might be helpful in order to stop the courts from going the way of the Congress.
Another critique of the proposal was articulated here by David Faris. Since conservatives dominate most of the U.S. Circuit Courts, there might be an incentive for the Republican-aligned justices not to agree on the final five high court members, so that the Supreme Court wouldn’t hear any cases that term. That scenario would leave the court of appeals judgments in place, most of which would be favorable to conservative policy goals.
Yeah, no, it’s a valid objection, especially if you go by the concept that’s in the article that’s been put forward, where, you know, the way you kind of enforce the need for there to be that consensus is that you can’t have a quorum without it. And then if you can’t have a quorum, cases can’t be heard [by the Supreme Court] and the prior decision stands. Of course, that’s something that one would hope is a temporary effect, [mitigated] as the bench comes into a little more balance over time.
But you know, this is one of the reasons why the step that I would take as president is not to immediately launch this reform, but to establish a commission that can hear how this, as well as the term limits concept, as well as others that may not have been framed up yet, either individually or in combination can do some good. Hear all of these objections, you know, reach a considered opinion, hopefully develop some kind of consensus, or at least a strong point of view, with some political backing to it.
Top image: Photo by Emilene Leone of Pete Buttigieg in Marshalltown on April 17, 2019, published with permission.