Carl Tobias

Thanksgiving and the Third Branch

By CARL TOBIAS


Wednesday, November 25, 2009

Several important developments provide cause for the United States federal judiciary, and those of us who watch it with both hope and concern, to be thankful on this Thanksgiving holiday.

Positive Developments Regarding Nominations, with Confirmations Still Problematic

Although the courts generally seem to fare better when Democrats control the U.S. Senate and House of Representatives, it remains unclear precisely how the 111th Congress and President Barack Obama will address the federal bench, particularly in light of the economic difficulties that the nation continues to experience. Still, some recent nominations and confirmations give reason for hope.

Democrats and Republicans have worked together when helping the Third Branch in some fields during the first session of Congress. One significant area is judicial selection. The federal courts presently are experiencing 97 vacancies for which President Obama has nominated 19 candidates. The judiciary should be grateful that the Chief Executive has nominated and the Senate has confirmed one excellent Supreme Court Justice, three fine circuit judges, and six outstanding district judges.

In another positive development, Obama has consulted with Democratic and Republican senators before official nominations and has selected highly-qualified individuals, although he should pick up the pace of his nomination process.

The courts should also thank Senator Patrick Leahy (D-Vt.), the chair of the Judiciary Committee, for expediting panel evaluation, and thank Senator Henry Reid (D-Nev.), the Majority Leader, for attempting to cooperate with Republicans on approving judges.

However, even more jurists might have received confirmation, had some GOP members better cooperated with Democrats. For much of the 111th Congress, Republican Senators have slowed floor debates and votes by placing anonymous holds on nominees.

Democrats and Republicans should work together more closely to approve judges because the current situation – in which the federal courts are operating with more than ten percent of their judgeships vacant -- may prevent the federal judiciary from swiftly, inexpensively, and equitably resolving cases.

Pressing Forward on Comprehensive Judgeships Legislation and a Raise in Compensation

The judiciary, in turn, should be grateful that the related idea of comprehensive judgeships legislation, which last passed in 1990, is apparently receiving serious consideration, and that the 111th Congress might adopt a judgeships statute.

The Judicial Conference, the federal courts' policymaking arm, has suggested that Congress authorize more than 60 new seats on the federal courts. Those recommendations are premised on conservative estimates of work and case loads, suggesting that all these additional seats that are needed. Senator Leahy has introduced the bill, S.1653, and has conducted a hearing on it.

Judges should give thanks, too, that the 111th Congress has seriously assessed the question of raising judicial compensation. It did so partly at the importuning of Chief Justice John Roberts, who has contended that salaries' erosion seriously threatens the quality of the federal bench. Numerous observers credibly assert that past inaction on judicial pay has undermined judges' standard of living and has thus prompted some experienced jurists to assume senior status or to retire earlier than they might, while precluding strong candidates from even contemplating bench service.

Finally, the courts should be thankful that relations between the judiciary and Congress have improved. For example, the House bill would increase court resources for Fiscal Year 2010 by 6.9 percent over FY 2009, while the Senate bill calls for a 6.7 percent rise in resources. The House passed its measure in July, but the Senate has yet to act.

In sum, the federal judiciary apparently has much for which to be thankful this Thanksgiving. Nonetheless, the benefits assessed above will only materialize if Democrats and Republicans in the 111th Congress cooperate with one another, and with President Obama, for the good of the judiciary, the Congress and the nation in the remainder of the first session and all of the second.


Carl Tobias is the Williams Professor at the University of Richmond.

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