Fault Lines
11 December 2018

Law, Politics, And Federal Court Vacancies

Feb. 23, 2016 (Mimesis Law) — On Friday, The Washington Post ran an opinion piece by Miguel A. Estrada and Benjamin Wittes which took a highly pessimistic view on confirmation procedures for members of the federal judiciary.  As President Obama nominates a candidate to replace the late Justice Antonin Scalia on the Supreme Court, the authors anticipate an ugly battle with the Senate, noting that “anyone [involved with the process] who claims to be acting out of a pristine sense of civic principle is being dishonest.”

Estrada writes from a place of personal experience.  A nominee to become a judge of the United States Court of Appeals for the District of Columbia Circuit in 2001, his nomination was tied up for over two years before he finally withdrew his nomination.  The article stresses that the only reason a candidate for a judicial appointment is ever confirmed is because the Senate decides to follow the norms developed over time.

All the Constitution gives the president is the power to nominate whomever he wishes for a judicial vacancy.  The Constitution expressly provides that the power to appoint may be exercised only with the affirmative concurrence of the Senate.  If the Senate does not act at all – for a good reason, for a bad reason, or for no reason at all – that is the constitutional equivalent of the Senate’s rejection of the nominee.  The Constitution doesn’t require the Senate to engage in any process at all beyond sitting on its collective hands.

Estrada and Wittes point out that over the past two decades, those norms have been replaced by “power politics alone” and note:

Today, there is no principle and no norm in the judicial nominations process that either [political party] would not violate itself and simultaneously demand the other side observe as a matter of decency and inter-branch comity.

Long gone, they lament, are the days where the Senate “owed an institutional duty” to “consider presumptively qualified nominees in a fair process.”  The ideal of  separation of power between the legislative and judicial branches have been perverted by partisan politics to such a degree that the replacement of Scalia seems to be the least of the judiciary’s problems.

Over the past two decades, both parties have concluded that federal appellate vacancies are far preferable than fully staffed courts if full staffing requires confirming nominees of the other party.  This has been the case even when appellate court after court has declared “judicial emergencies,” when vacancies result in intolerably high caseloads for the remaining judges.  Since both parties have accepted (and ignored) those emergencies with equanimity, it is a bit late in the day not to cry crocodile tears over a single vacancy on a court that hears a few dozen cases and needs a tie-breaking vote only in a small handful of those.

Estrada and Wittes do an outstanding job of illustrating a broken system that undermines the intent of the Constitution, but they offer no solution to the problem.  Quite frankly, other than urging those Senators to not be quite so partisan, a rewriting of the Constitution would have to take place to truly make a difference.

Strangely, The Post also ran an editorial on Sunday that blamed the problem with judicial nominations on the absence of term limitations for judges.  In an idealistic piece calling for some type of limitations on the tenure of the judiciary, the Post Editorial Board argued that term limitations would somehow make the confirmation process less adversarial.

But it is apparent that mechanisms the Constitution relied on to strike a balance between democratic accountability and judicial independence are failing, and that one of those mechanisms in particular – life tenure – is part of the problem.

A likelier way to lower the stakes, then, would be to fill Supreme Court vacancies not for a lifetime but for a finite term.

This extremely naïve editorial seems to have overlooked the insightful piece by Estrada and Wittes that had been published just a few days earlier.  Instead, the Board focused on how antiquated the idea of life tenure has become.

Life tenure has bolstered the judiciary’s “firmness and independence,” just as Alexander Hamilton predicted in Federalist No. 78 that it would.

However, he wrote those words in 1788, when life expectancy was less than 50 years, and long before the court assumed its role as arbiter of so many deeply contentious national issues – from abortion to environmental regulations to civil rights.

There may very well be merit in the argument of limiting the terms of Justices.  The suggestion that there be mandatory retirement at a certain age, or having lengthy (but not indefinite) set terms are not entirely ridiculous.  However, pointing out that the life expectancy in Hamilton’s time was only 50 years is a silly argument.   All of the current Justices (with the exception of Thomas) were 50 years or older before reaching Supreme Court.  Furthermore, while Alexander Hamilton may not have contemplated the specific issues of “abortion to environmental regulations to civil rights,” he clearly contemplated politically charged issues when advocating for “firmness and independence.”

The Post’s editorial also seems to ignore all of those other judicial vacancies addressed by Estrada and Wittes in the Post.  Quite frankly, if every judicial vacancy is going to be delayed indefinitely due to partisan conflict, the last thing the country needs is more vacancies caused by term limitations.

The first step to a more stable, more legitimate federal judiciary might be the paradoxical one of allowing politicians to shake up the courts more often than they can now.

This last statement in the Post’s editorial is disturbing, because it ultimately is advocating for federal courts to become even more political, which is the opposite of what it should actually be.  They might as well have argued for treating lung cancer with increased cigarette smoking.  The politicians who block nominations based on party lines are the problem in this equation – not the solution.  Advocating giving them more power over the judiciary defies logic.

Unfortunately, Estrada and Wittes’ views of the nomination process aren’t so much pessimistic as they are realistic.  The reality is that partisan politics do permeate the one branch of government that is supposed to be immune from them.  While term limits may ultimately prove to have some benefit to the judiciary, giving politicians additional control over the courts contradicts the basic principles of the separation of powers.

Main image via Franz Jantzen/Collection of the Supreme Court of the United States

4 Comments on this post.

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  • Ahcuah
    23 February 2016 at 11:56 am - Reply

    Maybe, instead of an amendment limiting the terms of judges, we need one that says that if the Senate has not approved or rejected any presidential nominee within 90 days (maybe 120 days at the start of a presidential term due to the volume of nominations), then the nominee is affirmed.

  • Richard G. Kopf
    23 February 2016 at 12:34 pm - Reply


    Excellent post. By the way, Chief Justice John Marshall generally regarded as the foremost federal judge in our Nation’s history, died at 79 after serving the nation for 34 years as Chief Justice. He began his tenure in 1801. He was present at the Founding. Indeed, Marshall served in the Continental Army during the American Revolutionary War and was friends with George Washington.

    The notion of term limits and age limits began with and is often pimped by, law professors. Oddly, they don’t want to do away with tenure.

    All the best.


  • Murray Newman
    25 February 2016 at 9:21 am - Reply

    Thanks Judge. Law professors say the darnedest things sometimes, don’t they? Quite frankly, I know very few (if any) lawyers UNDER the age of fifty that would have accumulated the requisite knowledge to be a Supreme Court Justice.

    Ahcuah, I like the 90 day idea quite a bit, but it makes too much sense to ever be adopted.

  • Jason Truitt
    25 February 2016 at 2:29 pm - Reply

    I like the 90-day rule too, but today that would simply mean every nominee was rejected on the 89th day. It still leaves room for politicking.