For Immediate Release

LOWER COURTS CAN BE EXPANDED THROUGH BUDGET RECONCILIATION

Failure to Restore Democracy Via Reconciliation Will Leave Filibuster Reform as Only Option

SAN FRANCISCO, CA (April 6, 2021) — Yale Law School professor Samuel Moyn and Take Back The Court director Aaron Belkin released a memo today arguing for expansion of federal appellate and district courts through the budget reconciliation process. The memo, which Moyn and Belkin sent to Senate leaders, lays out a clear legal case that lower court expansion satisfies the ‘merely incidental’ standard of the Byrd Rule, the highest hurdle to clear in the budget reconciliation process.

“A measure expanding lower federal courts by 250 judges can be enacted through the budget reconciliation process, which is not subject to the filibuster, and which needs only a simple 51-vote majority to pass the Senate,” said Moyn and Belkin. Moyn is a member of Take Back the Court’s Advisory Board.

The Republican-led Senate engaged in unprecedented obstruction to prevent former President Obama from filling lower court vacancies, confirming only two appellate judges and 18 district court judges during Obama’s final two years in office. As a result, Donald Trump inherited more than 100 lower court vacancies and appointed a disproportionate share of federal judges, the majority of whom were white men, and many of whom were rated as “Not Qualified” by the American Bar Association.

The lower courts face a significant backlog of cases, and Judge Brian S. Miller, a Republican-appointed district court judge in the Eastern District of Arkansas, observed that “Increasing caseloads lead to significant delays in the consideration of cases, especially civil cases which may take years to get to trial.” Sen. Lindsey Graham (R-SC) stated in 2020 that the Senate should “put on the table more judges for the next president, whoever he may be.”

Belkin said that, “Lower federal courts are in desperate need of expansion, and this can clearly be accomplished via budget reconciliation. If Democrats are unwilling or unable to accomplish this urgent reform via reconciliation, the only option remaining to get this done is to abolish the filibuster. We can’t let a Jim Crow era procedural hurdle like the Senate filibuster hinder democracy’s restoration.”

A full copy of the memo can be found at https://www.takebackthecourt.today/memo-lower-court-expansion-satisfies-byrd-rule

Take Back the Court raises awareness about the urgent need to expand the number of seats on the Supreme Court to address the theft of the court by Senator Mitch McConnell during the Obama Administration. Without adding seats, Congress will not be able to restore the right to vote, ensure reproductive freedom, protect workers, halt our climate emergency, or pass new legislation. Court expansion, which can be accomplished without a constitutional amendment, is the only reform that enables the un-rigging of the system and the restoration of democracy. Learn more at https://www.takebackthecourt.today.