Saturday, January 1, 2011

Judicial Vacancies and the Scope of Judicial Power

The Chief Justice of the United States, John Roberts, has released his Year-End Report on the Federal Judiciary.  The Wall Street Journal notes that the report draws attention to the increasingly slow process of confirming federal judges and the problems resulting from unfilled judicial vacancies:

Chief Justice John Roberts decried the partisan warfare that has slowed the appointment of federal judges to a crawl, writing in his year-end report Friday that political gamesmanship on Capitol Hill has left some courts burdened with "extraordinary caseloads."

Chief Justice Roberts places blame for the problem with Congress and the President.

Over many years, however, a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads. I am heartened that the Senate recently filled a number of district and circuit court vacancies, including one in the Eastern District of California, one of the most severely burdened districts. There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.
It is easy enough to simply blame congressional obstructionism, which has surely increased along with partisan polarization in Congress over the last four decades.  To the extent that Republicans and Democrats in government become more ideologically divided, it becomes increasingly unlikely that judicial nominees who share the political preferences and legal and constitutional views of the President and members of his part in Congress will be acceptable to members of the opposition party, all other things begin equal.  The pool of qualified judicial nominees will increasingly fall into a zone of gridlock: those who are politically palatable to the president to nominate will not garner support from his opponents in the Senate, who may block any nomination with a modest coalition of 40.

Another part of the problem, though, lies in the judiciary itself.  The federal courts are not simply a "venue where justice is achieved through impartial judgment and dispassionate application of law" as Chief Justice Roberts puts it.  Over the last century or so, and especially in the post-World War II era, the federal judiciary in general and the Supreme Court in particular has become increasingly prominent in contemporary political debates.  On an array of salient issues, ranging from abortion and the death penalty to campaign finance regulation and the handling of suspected terrorists and even the resolution of a contested presidential election, the federal judiciary has more-or-less abandoned its classic posture of deference to legislative authority.  Instead, federal courts have assumed a supervisory role over the political process, dictating the limits of and terms under which policy may be made by the states, Congress, and executive agencies in issue domains in which the courts have opened the premise of constitutional ambiguity or statutory uncertainty.

Over time, this process of creeping judicial oversight and regulation of the political process raises the stakes of judicial appointments.  If federal judges are increasingly prone to venture into politics, by, say, invalidating and enjoining a state constitutional amendment defining marriage (however foolish it may be) or  imbalancing Congress's statutory scheme for regulating the sale of health insurance (whatever the wisdom of that scheme may be), then it is naive to think that political actors in other branches of government would dismantle their prerogatives to exercise maximal oversight of the branch of government that claims to hold an irreversible veto over their policy choices.  The logjam of judicial nominees is not likely to break until judges themselves begin to back away from imposing their views of the law and the Constitution on the political process except where legislative and administrative actions cannot be supported by any reasonable constitutional and legal reasoning.

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