The Trump court-packing plan is based on a fiction.

U.S. Supreme Court Associate Justice Neil Gorsuch takes the judicial oath as President Donald Trump looks on during a ceremony at the White House on April 10.

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A version of this piece was originally published on Shugerblog.

Federalist Society co-founder Steven Calabresi and attorney Shams Hirji dropped a bombshell plan at the end of November, proposing a massive expansion of the federal judiciary by 33 or even 50 percent. The New York Times’ Linda Greenhouse and Slate’s Dahlia Lithwick have each offered their own criticisms of the proposal. As Ron Klain explained in the Washington Post, the plan would have an absurdly profound effect on the makeup of the federal judiciary:

If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325).

At times, Calabresi and Hirji are forthright about their motives. On the first page of their memo, the first header trumpets: “Undoing President Obama’s Judicial Legacy.” But most of their memo emphasizes an unprecedented “crisis” in judicial workload. “Caseloads have reached unprecedented levels,” they write, citing “a crisis in volume.” Apparently, the sky is falling, and Calabresi and Hirji just happened to notice now that Trump is in office. The Calabresi-Hirji memo is misleading about the facts of the federal judiciary, though. There is no workload crisis whatsoever.

Again, it’s notable that Calabresi and Hirji only suddenly noticed this apparent crisis in 2017, even though their memo searches for—and purports to find—evidence of a workload crisis going back years, even decades. Somehow, conservatives did not suggest increasing the size of the judiciary under Obama. In fact, Senate Republicans did the opposite: They blocked Obama’s nominations to leave those seats open for Republicans. Klain writes:

The Garland-to-Gorsuch Supreme Court switch is the most visible example of this tactic but far from the only one: Due to GOP obstruction, “the number of [judicial] vacancies … on the table when [Trump] was sworn in was unprecedented,” White House Counsel Donald McGahn recently boasted to the conservative Federalist Society.

Trump is wasting no time in filling the 103 judicial vacancies he inherited. In the first nine months of Obama’s tenure,…

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