The Courts

Perhaps no institution better exemplifies the difference between the Democratic and the Republican strategy on power than the courts. 

The American judiciary has been part and parcel of the long-term Republican strategy for expanding its influence, centered around the Federalist Society, which grooms Republican lawyers to become GOP activist jurists.

It’s why Republicans so gleefully advanced Amy Coney Barrett days before the 2020 election and why Mitch McConnell continued to move through judge confirmations as COVID-19 relief packages stalled.

Republicans believe that the courts are a core vehicle for advancing their policy goals, and they prioritize a strategy that has given the courts a rightward tilt.

Partisan Distribution of Federal Circuit Court Judges

But Democrats have no parallel infrastructure to exert control over the federal and state supreme courts, and that imbalance means that an entire branch of government could fall further into Republican hands, now that the Supreme Court has a 6-3 conservative majority.

Based on our Senate modeling, we estimate how the composition of the federal courts could shift over the next 20 years. As shown in the graphics below, Democrats stand a substantial chance of falling woefully behind.

Partisan Distribution of Federal District Court-Level Seats

The risk of a GOP takeover

Based on the scenarios we modeled for the Senate, we estimated future control of all of the Federal Circuit and District Courts over the next twenty years.

Partisanship was assigned to existing judges based on the President who appointed them and to future judges based on who would have control of the Presidency and the Senate at the time of a future appointment.7 A retirement age of 70 was used to determine when judges would take senior status and be replaced.

There are thirteen Federal Circuit Courts, which, across them, comprise 94 District Courts. We also examined the composition of the Courts of Federal Claims, Veterans Claims, and International Trade.

As of fall 2020 when this analysis was conducted, Democratic appointees were a majority in six Circuit Courts and 33 District-level Courts. Republican appointees were a majority in seven Circuit Courts and 64 District-level Courts. While the composition of the courts is currently in flux with a large number of judges taking senior status now, the picture of Republican dominance is clear.

That picture is likely to become more dire by 2040. On average in our five different modeled scenarios, Republicans would control nine of thirteen Circuit Courts and would control the vast majority of seats in the District Courts. The outcome is shown in the graphic below.

Why is this the case? The Trump Administration was ruthlessly efficient at appointing not only a large number of judges overall, but also a large number of young judges. Democratic judges, meanwhile, are aging.

Furthermore, Mitch McConnell also embraced a more partisan approach to appointing judges. Many Obama-appointed judges were compromise, moderate-to-conservative jurists designed to win support from Republicans to allow a more liberal judge to also move forward.

Among the first tasks for a Democratic President and Senate should be to replace those currently on the bench with a younger crop of progressive judicial talent.

As shown below, the future Republican dominance of the Senate, if Democrats aren’t able to shift the course of the states, results in large GOP court majorities.

While the overall composition in the Circuit Courts may change little, the control of each Circuit, critical for decisions reached, shifts notably toward Republicans. Republicans would add 91 seats to their existing District Court dominance.

Partisan Distribution of Circuit and District Court Judges (2020-2040)

First

DEM

4

2

DEM

4

2

GOP

13

16

GOP

11

18

Second

GOP

6

7

GOP

6

7

DEM

38

24

GOP

19

43

Third

GOP

6

8

GOP

5

9

GOP

24

37

GOP

21

40

Forth

DEM

9

6

DEM

9

6

Split

28

28

GOP

24

32

Fifth

GOP

5

12

GOP

7

10

GOP

29

54

GOP

31

52

Sixth

GOP

5

11

Split

8

8

GOP

28

34

GOP

24

38

Seventh

GOP

2

9

DEM

6

5

DEM

27

20

GOP

13

34

Eighth

GOP

1

10

GOP

4

7

DEM

28

16

GOP

13

31

Ninth

DEM

16

13

GOP

13

16

DEM

57

55

GOP

38

74

Tenth

DEM

7

5

GOP

5

7

GOP

12

29

GOP

11

30

Eleventh

GOP

5

7

GOP

3

9

GOP

24

45

GOP

20

49

DC

DEM

7

4

GOP

5

6

DEM

11

4

GOP

5

10

Federal

DEM

8

4

DEM

8

4

GOP

10

24

GOP

8

26

Click on any scenario to see how we estimate the partisan distribution of judges changing between 2020 and 2040

First Circuit Partisan Composition of the Circuit Courts

2020

DEM

GOP

5

5

2040

DEM

GOP

5

5

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The lack of a liberal federal judicial strategy

The key to the success of the Republican takeover of the American judiciary has been focus. With Mitch McConnell leading the Senate and the Federalist Society supplying the names, the GOP has pushed young, ideological jurists onto the bench.

They have done so with tremendous speed, appointing over 200 new judges in the four years of the Trump Administration. And while those judges were unwilling to endorse Trump’s brazen election lawsuits, they have been broadly supportive of efforts to restrict the rights of minorities and women and to strengthen corporate interests over those of common people. Meanwhile, Democrats have struggled to develop a coherent counter-strategy.

Earlier this year, the Democratic Senators issued a report outlining the caustic influence of the Federalist Society on the American judiciary. Brian Fallon’s Demand Justice group is developing a grassroots approach to engaging progressives on the court.

People’s Parity Project hopes to galvanize law students to remake the courts. But these efforts are all in the early stages, versus the multi-decade strategy advanced by Republicans. 

Let’s not forget the state courts

Many critical policy issues, including key issues around gerrymandering and voting rights, are determined by state supreme courts. And in many states, the makeup of these courts is voted on directly by the people.

When former Attorney General Eric Holder and the National Democratic Redistricting Committee first got engaged in Wisconsin Supreme Court races in 2018, Holder noted how difficult it was to get Democratic donors engaged in the race, despite its importance in determining outcomes for fundamental policy issues in the state, including one of the worst state-legislative gerrymanders in the country.

In fact, Democrats were one state supreme court election away from Trump’s post-election lawsuits being successful in Wisconsin. The table below outlines the states where judicial control is most uncertain going forward, along with how judges are selected.

While many judicial seats are nominally non-partisan, our analysis identifies the partisan leaning of these judges based on their own statements, party support, and record.

Table. The Battle for Control of the State Judiciary

State# of SeatsCourt
Composition
Manner of
Selection
Arizona7GOP: 7Gubernatorial Appointment
Florida7GOP: 7Gubernatorial Appointment, Retention Election
Georgia9GOP: 8Direct Election, with Vacancy Appointments
Ind: 1
Iowa7GOP: 4Gubernatorial Appointment, Retention Election
Dem: 1
Ind: 2
Michigan7Dem: 4Direct Election
GOP: 3
North Carolina7Dem: 4Direct Election
GOP: 3
Ohio7GOP: 4Direct Election, with Vacancy Appointments
Dem: 3
Pennsylvania7Dem: 5Direct Election
GOP: 2
Texas9GOP: 9Direct Election, with Vacancy Appointments
Wisconsin7GOP: 4Direct Election, with Vacancy Appointments
Dem: 3

How can Democrats regain the judiciary?

We can take the following steps to help remake the judiciary, notwithstanding the colossal disadvantage progressives face in the Supreme Court.

Expand the judiciary

While much is being made of the notion of expanding the Supreme Court, there is a broader case to expand the size of the federal judiciary at the District and Circuit Court level to align the number of judges with the population of the communities served.

This alignment would help to meet workload issues, ensure speedy consideration of cases, and provide equal access to justice for all residents.

As shown in the table below, if the Circuit Courts were expanded to provide the same number of per capita judges as the Tenth Circuit, which has the highest number of judges per capita, 66 additional Circuit Court judges would be created.

The Judicial Conference of the United States has called for 65 new District Court judges.8 In expanding the judiciary in this way, the court system could be made more representative, more efficient, and more equal across regions.

The current small majority of the Senate means this approach likely cannot happen tomorrow, but Democrats can begin to plan and lay the case for this expansion. 

Table. An Expanded Federal Judiciary

CircuitCurrent #
of Judges
Population/JudgeTotal
Population
Expanded
Court
New
Justices
First62,328,46913,970,816104
Second131,813,68823,577,940174
Third141,607,04422,498,612162
Fourth151,985,89429,788,417216
Fifth171,920,36632,646,230236
Sixth162,006,60132,105,616237
Seventh112,272,85625,001,420187
Eighth111,869,84020,568,237154
Ninth292,129,06661,742,9084415
Tenth121,418,36317,020,355120
Eleventh122,772,39233,268,6992311
DC11110
Federal12120
Total New66
Invest in the State Supreme Court landscape

Democrats lack strong investments in the supreme court landscape at the state level. Campaigns are supported locally on an ad hoc basis.

Messaging around state supreme court races, in particular, is limited, and why they matter in protecting and advancing Democratic values is not well-articulated. Efforts should be spun up to professionalize these campaigns and be prepared for these fights in advance.

Build the pipeline

The beauty of the Federalist Society is the top-to-bottom grooming of conservative legal students, from their first year of law school to their time clerking for conservative judges to them being appointed to the bench themselves. Democrats need to be actively developing the best progressive legal talent and workshopping strategies for advancing progressive causes from the bench.

That begins with strengthening professional societies for progressive potential jurists in law schools, advancing progressive legal theory that resonates against the world of “originalists,” identifying and uplifting public interest practitioners, and advancing a diverse legal field.

Implement the pipeline

The next part of the strategy is to be serious in our efforts to fill the judiciary. McConnell killed the “blue slip” process, which gave deference to the US Senators from the relevant state. Some Democrats, interested in a return to the better days of bipartisanship, would like to reintroduce this practice.

That would be a folly – we need to use power when we have it to build a fairer justice system. We need to have the lists of the judges to fill these positions ready. We need to nominate and confirm efficiently.

What role will EveryDistrict play in judicial power?

Launch the State Justice Project
Building on our unique experience in the state political environment, by 2022 we plan to expand from state legislative races alone to incorporate key state judicial races. The State Justice Project will provide judicial candidates the resources they need to win.

We will help drive grassroots donations to Democratic and non-partisan, but aligned, candidates who will advance greater justice in the states. This program will also begin to create a pipeline of state-level lawyers interested in advancing justice across the country. 


7 A split control environment is modeled as a 50-50 chance of a Democratic or Republican judge, assuming a return to the balanced approach employed by President Obama later in his term.

8 Hon. Brian Miller, testimony before the Senate Committee on the Judiciary. June 30, 2020. https://www.uscourts.gov/sites/default/files/judge_brian_s._miller_testimony_june_2020_0.pdf