After the close of the impeachment trial of President Trump this week, Senate Majority Leader Mitch McConnell presented Chief Justice John Roberts with a “golden gavel.” The token is ordinarily presented to Senators who have sat in the presiding chair for 100 hours. Roberts certainly filled that minimal qualification during his many hours presiding over the trial.
I recently took Elizabeth Warren to task for her trial question that crassly challenged the legitimacy of Roberts and the Supreme Court. McConnell’s presentation can be seen as only a slightly more subtle effort to politicize the Chief Justice for partisan gain. True, Roberts did yeoman’s work in presiding over the trial, all the while maintaining his busy day job (which only involves hearing oral arguments, writing opinions, navigating the personalities and needs of his fellow Justices, and managing an entire branch of the federal government). And in a different era, the presentation of the golden gavel might be properly viewed as a sincere token of appreciation. In this deeply partisan environment, however, it primarily exploits the Chief Justice’s participation to court favor with Republicans — a misappropriation of judicial goodwill for partisan gain.
Many politicians, advocacy groups, and journalists have written about President Trump’s federal judicial appointments over his first three years, with the dominant narrative being that he has transformed the judiciary by appointing more judges, with more far-right leaning ideologies, than any President in history.
Russell Wheeler looks at the data underlying these assertions, and finds the story to be much more nuanced. As with everything Russell writes, the post is worth an immediate and careful read.
With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.
The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.
The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.
Surprise me, Senators. Do the right thing.
The Washington Times reports that Senator Lindsey Graham will step down as Chair of the Senate Judiciary Committee in early 2021, and that Senator Chuck Grassley will again take the Chairman’s gavel. Grassley was instrumental in steering the Supreme Court nominations of Neil Gorsuch and Brett Kavanaugh through the Committee.
The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.
Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.
While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.
“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”
There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.
As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.
In January, President Trump renewed the nominations of more than 50 people to serve as federal district and appellate judges. (These individuals had been previously nominated, but there nominations were not acted up before the end of the year, and had to be re-nominated for a new Congress.) Yesterday, 44 of the nominees passed the Senate Judiciary Committee, and will advance to the full Senate for a vote.
Several of the nominees passed on a 12-10 party-line vote. Others (primarily district court nominees) received little opposition from Senate Democrats. Courthouse News Service has a good roundup here.
I will leave commentary on Senator Cory Booker’s increasingly absurd committee histrionics for another day.
That’s the only reasonable interpretation of her stunning announcement that she will preemptively oppose any federal appellate court nominee put forth by President Trump. This is naked politics in its worst form: in an effort to score points with her political base and show off her willingness to resist the President, she is ready to deprive an entire branch of government the basic resources it needs to operate.
One might conclude that it’s all sound and fury, given that the Republicans control the Senate, and Harris’s Judiciary Committee vote will rarely be dispositive. But what an ugly precedent it sets. Should the junior senator from California succeed in her presidential aspirations, she will have set the stage for others to reject her own nominees sight unseen.
And of course, the judiciary is the body that truly suffers from this silly posturing. There are currently twelve vacancies on the federal circuit courts of appeal, half of which are on Harris’s home circuit, the Ninth Circuit. Those vacancies put pressure on the remaining judges to process heavy dockets with inadequate resources, leading to worse outcomes for criminal defendants, civil litigants, and the entire court system.
Senator Mitch McConnell was rightly criticized for failing to schedule a vote on the nomination of Judge Merrick Garland to the Supreme Court in 2016. That was ugly power politics, and this is no different. Democrats should reject unequivocally Senator Harris’s absurd and counterproductive policy.