Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during a Subcommittee on Courts, Intellectual Property, and the Internet hearing on “Examining the Need for New Federal Judges.”

“Mr. Chairman, ‘access to justice’ is not just a political slogan, it is a constitutional guarantee.  But in some federal judicial districts, this promise meets the reality of an overburdened and understaffed court that cannot keep up with a burgeoning caseload.  As a result, cases can be delayed, or rushed, and justice may be short-changed.

“To help address this problem, every two years the Judicial Conference of the United States analyzes the workload and the resources of all U.S. Courts of Appeal and U.S. District Courts, and it recommends to Congress new judgeships to ease the burden of courts that are stretched too thin.

“In March 2017, the Judicial Conference recommended the creation of 5 new judgeships in the 9^th Circuit Court of Appeals, and 52 new judgeships in 23 district courts throughout the country.

“I appreciate the thoughtful analysis conducted by the Judicial Conference, and we should consider its recommendations carefully.  I cannot help but note, however, the context in which this hearing occurs.  It just so happens that we have a Republican Senate busily confirming a Republican President’s judges at a historic rate—some of them, I might add, with dubious qualifications, and many with alarming views.

“I certainly hope that the purpose of this hearing truly is to assist overburdened courts, and that it is not, in fact, intended to lay a foundation for assisting President Trump in carrying out his plan to pack the courts with ideologically extreme judges.

“We should remember that it was only five years ago that the full Judiciary Committee held a hearing titled “Are More Federal Judges Always the Answer?”  The hearing was meant to call attention to the supposedly outrageous fact that President Obama had nominated judges to fill the existing vacancies on the D.C. Circuit.

“These were not new judgeships that he hoped to create.  He simply nominated judges to fill all the vacancies on what is generally considered the most important court in the country, besides the Supreme Court.  But Republicans cried foul and declared that he was attempting to pack the court.  They also noted that each new judgeship could cost as much as $1 million a year to support, which they considered an unwise use of resources.

“They sang a different tune in 2002, however, when President George W. Bush was in office.  The Constitution Subcommittee held a hearing called “A Judiciary Diminished is Justice Denied: The Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary.”  The Democratic Senate, they argued was creating a judicial crisis because it was not confirming President Bush’s nominees quickly enough.

“But they hardly seemed to complain during the final two years of the Obama Presidency, when Senate Republicans confirmed the fewest judges since 1952, leaving over 100 positions for President Trump to fill.  And, when Justice Scalia passed away, Republicans cheered the Senate’s refusal even to schedule a hearing on President Obama’s nomination of Merrick Garland.  It did not seem to trouble them at all that a seat on the highest court in the land remained vacant for more than a year, because it paved the way for Justice Gorsuch to be confirmed.

“I provide all of this history not to take anything away from the Judicial Conference, or its non-partisan and highly professional recommendations.  But it is worth noting that there is another set of judgeship recommendations floating around conservative circles right now.  This one was developed by Steven Calabresi, a founder of the Federalist Society, whose plan would add 61 new federal appellate circuit court judges, a 36% increase, and 200 new district court judges, almost 30% more than the current figure.  Unlike the Judicial Conference, which conducted a careful study of the needs throughout the judicial system, Mr. Calabresi’s proposal, he makes clear, was developed, in part, to “undo President Obama’s judicial legacy.”

“In fact, President Trump is already hard at work on radically reshaping the federal judiciary.  Never before have we seen a President essentially outsource the process of selecting nominees to ideologically driven organizations, like the Federalist Society and the Heritage Foundation, rather than respected legal organizations.  As a result, we have seen a host of troubling nominations.

“More than one has been unable, or unwilling, to answer whether Brown v. Board of Education was correctly decided; one nominee said that transgender children were part of “Satan’s plan”; and several nominees have been rated unqualified by the American Bar Association.  Unfortunately, that has not stopped the Senate from confirming the President’s nominees at a historic pace.

“We should, of course, consider the merits of the Judicial Conference’s proposals, regardless of who holds the levers of power at any given time.  With the understanding that this hearing is not a pretext for any larger goals, I look forward to hearing from our witnesses, and I yield back the balance of my time.”

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