Why the Federal Courts Should Give Thanks This Thanksgiving: A Set of Positive Developments, with the Hope of More to Come

By CARL TOBIAS

Wednesday, Nov. 26, 2008

A number of significant developments are cause for the United States federal courts to give thanks on this Thanksgiving holiday. Perhaps most important are the expansion of Democratic Party majorities in the 111th U.S. Senate and House of Representatives, and the election of Barack Obama as the 44th President, because the federal judiciary appears to fare better by several metrics when Democrats control the other two branches. However, it seems premature to predict exactly how the new Congress and chief executive will address the federal courts, especially given the economic crisis that the nation presently confronts.

Democrats and Republicans have cooperated to help the federal courts in numerous areas during the 110th Congress. One prominent field is that of judicial selection. There are now 41 federal court openings, for which President George W. Bush nominated 26 candidates. The judiciary should be grateful that Senator Patrick Leahy (D-Vt.), his party&'s chair of the Judiciary Committee, and Democrats have worked closely with Republicans on approving judges, although even more jurists might have been confirmed, had President Bush fully cooperated with Democrats.

Throughout the 110th Congress, Mr. Bush tendered controversial appellate nominees without consulting home-state senators, who concomitantly opposed the candidates, which frustrated the process. Moreover, the Bush White House, like the Clinton Administration before it, often submitted large groups of nominees immediately before Senate recesses, and that practice complicated approval because the committee has insufficient resources to investigate all of the prospects expeditiously. The Obama Administration will hopefully cooperate better with the Senate and enable it to focus carefully on the qualifications possessed by nominees being considered for life-tenured positions.

More Good News for the Courts: Fewer Vacancies and Possible Congressional Action on Adding Judgeships and Raising Salaries

Judges should be thankful, too, because there are now substantially fewer vacancies on the federal courts than at the conclusion of the Clinton or George H. W. Bush Administrations. Indeed, when Senator Orrin Hatch (R-Utah) chaired the Judiciary Committee during the Clinton Administration, he was fond of saying that 60 openings was full employment for the judiciary. But that is a short-sighted view: Having relatively few vacancies will permit judges to decide cases expeditiously, inexpensively and equitably.

The judiciary should give thanks that the related notion of comprehensive judgeships legislation received serious consideration and that the new Congress might enact a statute. (The most recent such law passed in 1990, and a new one is long overdue.) The Judicial Conference, the federal courts&' policymaking arm, has recommended that Congress approve more than 60 new judicial positions – basing its suggestions upon conservative projections of judicial workloads and cases.

The courts should be thankful that the 110th Congress also seriously evaluated increasing judicial salaries -- partly at the instigation of Chief Justice John Roberts, who strongly argued that the erosion of compensation was seriously threatening the bench, and the 111th Congress may raise pay. The Chief Justice and many observers believe that congressional inaction on judicial salaries has undermined numerous judges&' standard of living and led some experienced jurists to assume senior status or retire earlier than they might have to take advantage of private-sector opportunities while also preventing excellent candidates from even considering judicial service.

More Good News: The Possibility of Better Self-Policing and Improvements in Areas Relating to Jurors and Jury Service

Judges should give thanks, in addition, that Democratic control of the Senate and House has meant that relations between the courts and legislators have improved in other areas. The 2006 issuance of the Breyer Committee report on judicial discipline and of Judicial Conference requirements for "judicial junkets" and computerized conflict-of-interest checking, as well as numerous current investigations of alleged judicial misconduct, suggest that the judiciary is taking seriously the duty to police itself. Nevertheless, compliance with certain of the Judicial Conference strictures has been uneven, which has led some members of Congress to remain concerned about the bench's capacity for self-regulation.

The judiciary also should be thankful that lawmakers passed the Judicial Administration and Technical Amendments Act of 2008. This legislation, which the Judicial Conference endorsed, included 18 court improvements in areas related to jurors and their service as well as Criminal Justice Act compensation.

The federal bench seemingly has much for which to give thanks on this Thanksgiving. However, the courts will only realize the advantages explored above, if Democrats and Republicans in the 111th Congress end their partisan infighting and work with each other and the new President for the good of the judiciary, Congress and the country in 2009.


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