Yesterday, Chief Justice Roberts of the United States Supreme Court issued his end-of-year report, in it he said some rather strong things to Congress. Fox News quotes his report:
Citing the economic downturn as one of two “immediate obstacles” to improving the performance of the federal judiciary, Chief Justice of the United States John Roberts also focuses part of his annual year-end report on the other problem he sees hampering the judicial branch: political intransigence in confirming federal judges.
Roberts says the nomination and confirmation of federal judges has become a persistent problem. “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,” Roberts said in his report released Friday.
Statistics from the Federal Judicial Center show that more than 10% of the 876 federal judgeships are vacant. “This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads,” Roberts added.
It was about time that the Supreme Court itself spoke up. We claim to be a country of laws, but the flagrant and incessant game of character assassination is slowly putting our very claim to be a country of laws severely under strain. As one can verify, until the recent past, meaning within my memory but not within the memory of a Gen X’er, by and large, a President had a fairly good chance of having his judicial picks approved. Frankly, at anything much lower than the Supreme Court, they were rarely even debated.
The reason for that was the belief that over the course of time, there would be balance. If the current President was from one party, the next President might not be. Thus, over time the judges appointed to the various courts would have a variety of backgrounds and judicial philosophies. This was thought to be a good thing. But in the 1980’s, that began to change. More and more, the cry went up that one could not in good and moral conscience vote for a judge who held even one thing that the Senator did not agree with (it is the Senate that confirms judicial nominees). Frankly, most of this was driven by issue politics and small pressure groups.
The pressure came, and still comes, particularly from those groups who believe that only their interpretation of the Constitution is the correct one. Any other interpretation of the Constitution but theirs is not a true interpretation, but rather a falling away from what our Founding Fathers truly wanted. The problem is that it does not take much reading of our Founding Fathers to realize that they did NOT agree on many things. Both the Constitution and the Bill of Rights are compromise documents, whose purpose is to allow people of differing opinions to yet have one united country. It works on the idea of majority rule, but with clear protections in place for the minority so that our country might not become a “dictatorship of the people.”
Chief Justice Roberts is correct in pointing out that the more we fall away from the idea that a diverse nation needs a diversity of judges, the less we are able to appoint judges. And, the more we allow ourselves to believe that there is only one correct interpretation of the Constitution, the more we are in danger of being willing to take away rights from those people whom we picture as not being true Americans.
More than one person has said over the decades that for a democracy to be vibrant, it needs the stimulus of vibrant debate. Notice that I did not say argument, nor did I say talking-head shouting matches, those are truly an abomination. Rather, it is vibrant debate, with its ebbs and flows and its willingness to be silent in order to hear the debate of the other, that ensures that new ideas are heard, old ideas are preserved (or changed) as necessary, and adjustments can be made to the course of our country.
Now we are beginning to realize that we need that same vibrant debate, but expressed in a judicial way. We need to have different courts in different parts of the country take different positions on some controversial aspects of law and civil rights. This judicial debate eventually heads up to the Supreme Court, where a mixed group of people has the possibility of reviewing the arguments from various points of view, and also has the possibility of reaching a decision that furthers our liberty and democracy.
It is this type of judicial debate that the pressure groups are seeking to stop. It is this type of debate that they do not wish to hear, lest someone say that their viewpoint is wrong. It is this type of debate that Chief Justice Roberts is worried about losing. I am glad that he said what he said. I only hope that someone in the Senate is listening.
Well thought out and well said!
Well, though it may be a distant childhood memory, many Gen-X’ers like me can at least remember such times. It’s the Millenials who will have no memory of it at all. I also think it’s good that Chief Justice Roberts highlighted that point. However, I don’t think it’s the first time the Supreme Court (which is also charged with oversight of the judiciary) has spoken out on this issue. I remember Chief Justice Rehnquist regularly chiding the Senate on that point in the 90s. And I think it’s been a major point of concern raised in every interview with a Justice I’ve read over the last couple of decades.
You are correct, and unfortunately it means that there is little hope that the Senate will listen.
Unfortunately, that’s probably true. I don’t remember the exact interviews, but I remember that once a couple of interviews I read had come out fairly closely together. And on this issue, I remember thinking that if Justices Scalia and Stevens were speaking out in full agreement on a matter of concern, then the Senate really should pay attention. Sadly they didn’t. The federal judiciary plays a crucial role in our country and when the backlog of cases reaches the ridiculous proportions that it has, things start breaking down.
This is so true-unfortunately.