The Hill reports on Senator Charles Grassley’s statements to a local Iowa newspaper. It is unclear whether there is anything more than conjecture to this prediction, but it does seem reasonably likely that there will be at least one more vacancy before January 20, 2021. The real question is whether there will be a vacancy before the midterm elections next year, since a change in the composition of the Senate could impact both nomination and confirmation strategies.
With his confirmation by the Senate last Friday, Judge Neil Gorsuch will be sworn in and take his place on the Supreme Court today. Many pixels have been spilled in an effort to analyze Gorsuch’s nomination, confirmation, and anticipated jurisprudence. But his addition also changes the internal dynamics of the Supreme Court, with downstream effects on other aspects of the federal court system. Here are a few things I will be watching for in the coming months: Continue reading “Four things to watch under Justice Gorsuch”
Professor James Duane has a very short and interesting article up on SSRN about the potential perils of correcting a judge’s mispronunciation during oral argument. He focuses on one recent case where an excellent young lawyer twice corrected a Supreme Court Justice’s mangled pronunciation of “antecedent” simply by later pronouncing it correctly. Duane thinks this was the wrong approach, and counsels lawyers to either mispronounce the word in the same way going forward, or avoid using the mispronounced word altogether for the remainder of the argument.
That seems like odd advice to me. Judges are human beings, and they are not immune from basic mistakes any more than the rest of us.* Were I in the situation of that young advocate, I would be inclined just to use the word correctly the next time. Mimicking the error would seem to call even greater attention to it.
What do readers think? Feel free to weigh in.
* Some judges are more comfortable admitting mild linguistic ignorance (Chief Justice Roberts’ interruption a few years back to ask about the meaning of “orthogonal” comes to mind). But accepting that you mispronounced a word, and that it’s no big deal, seems to me a basic example of judicial humility.
I have recently become fascinated with the work of William Howard Taft, a man who approached the Presidency like a judge and the Chief Justiceship like an executive. Taft was an extraordinary judicial reformer, not because of his judicial opinions (although he authored hundreds during his time on the Court) but because of the “executive principle” he brought to managing the federal court system. In just nine years as Chief Justice, Taft personally lobbied for and secured legislation increasing the number of federal judges, dramatically reducing the Supreme Court’s mandatory caseload, and authorizing the courts to developing internal administration through what would become the Judicial Conference of the United States. Taft also set the groundwork for the Rules Enabling Act (allowing the federal courts to develop their own uniform procedural and evidentiary rules).
Professor Justin Crowe’s article, The Forging of Judicial Autonomy, vividly and concisely describes how Taft turned a highly dependent, decentralized federal court system into a modern organization in less than a decade. Crowe focuses his article around two major pieces of legislation: a 1922 Act which added 24 new federal judges and created the Judicial Conference’s predecessor, the Conference of Senior Circuit Judges; and the Judiciary Act of 1925, which eliminated most of the Supreme Court’s obligatory caseload. These Acts were not, Crowe argues, inevitable — or even desired — by Congress. Rather, they were the result of a “judicial autonomy” forged by Taft, who combined relentless entrepreneurship with existing social networks and willingness to embrace modern management theories.
The humdrum unanimity of Supreme Court cases is rarely conveyed to the public, even in passing.
CSPAN/PSB has released a new survey of more than 1000 likely voters, concerning their knowledge of and attitudes about the United States Supreme Court. The results are not particularly encouraging for those who follow the Court closely.
Survey respondents reported very high interest in the Court generally: 90% of respondents agreed that “Supreme Court decisions have an impact on my everyday life as a citizen” and 82% indicated that the issue of Supreme Court appointments was important to their 2016 Presidential vote. Sixty-five percent of respondents stated that they follow news stories about the Supreme Court “very often” or “somewhat often.”
But at the same time, actual familiarity with the Court and its members is middling at best. Nearly 60% of survey respondents could not name a single Supreme Court Justice. And while 71% of respondents said that they were following the recent news about President Trump’s Supreme Court nominee, only 28% could actually identify that nominee by name.
Also significant were the latest numbers regarding the public’s perception of the Court: 62% of survey respondents agreed that recent U.S. Supreme Court decisions demonstrate that the Justices effectively split into parties, similar to Republicans and Democrats in Congress. By contrast, only 38% of respondents thought that recent decisions demonstrate that the Court acts in a serious and constitutionally sound manner.
Results like these tend to trouble court watchers, both in terms of the general lack of civic knowledge and with respect to the public’s apparent belief that the Court is primarily political body. These trends do require attention. But a closer inspection suggests that there is no need to panic — at least not yet. Continue reading “Public interest in the Supreme Court is high, but knowledge is low. Should we worry?”
Judge Neil Gorsuch’s opening statement in his Supreme Court confirmation hearings was a lovely ode to his family, upbringing, and the judges and lawyers who mentored him throughout his career.
Two passages in the 16-minute speech jumped out at me:
As a lawyer working for many years in the trial court trenches, I saw judges and juries — while human and imperfect — trying hard every day to decide fairly the cases I presented. As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world. Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands.
Of course, I make my share of mistakes. As my daughters never tire of reminding me, putting on a robe doesn’t make me any smarter. I’ll never forget my first day on the job. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying. But troublesome as it can be, the robe does mean something — and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.
I am not the only one to be struck by the phrase “honest black polyester,” but it certainly sits right with anyone who has worked with a judge day in and day out. The unrelenting human-ness of judges, struggling to get it right and self-constrained by their own respect for the law, characterizes American courts far more than the know-it-all lawgiver or the robed politician.
Full C-SPAN video of Judge Gorsuch’s statement is here.
Supreme Court confirmation hearings for Neil Gorsuch begin today with the introduction of the nominee by his home state senators, Michael Bennett and Cory Gardner of Colorado. It is a nice bipartisan tradition for the home-state senators to introduce all federal judicial nominees, presumably dating back to a time when the rest of the Senate was not assumed to be familiar with a candidate. While almost all post-Robert Bork Supreme Court hearings have been contentious at times — usually unnecessarily so — it is a nod to decorum that the Senate still begins every hearing with such a welcoming gesture.
Home-state bipartisanship in judicial selection is not just a matter of courtesy. Senators from many states have developed bipartisan screening committees to help them recommend qualified candidates for lower federal judgeships to the President. These screening committees review the qualifications of those interested in judgeships on federal district courts and circuit courts of appeal, and pass the names along to the home state senators, who then pass along names to the President. While the President has ultimate discretion in choosing a nominee for any Article III judgeship, the use of screening committees effectively pre-ratifies the candidate, and helps ensure a much smoother confirmation process. The Supreme Court represents a special circumstance where screening committees are not used, but we can hope that both President Trump and the Senate will continue to rely on them where appropriate in considering lower court nominees.
We will be following the Gorsuch hearings this week, with commentary to follow on how the hearings reflect and impact the current relationship between Congress and the courts.