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January 3, 2012

Is there a "growing gulf between the Supreme Court justices and the rank-and-file federal judges"?

The question in the title of this post is prompted by the subheading of this provocative new commentary by Andrew Cohen in The Atlantic.  (Hat Tip: How Appealing)  The piece's main headline is "A Federal Judge Responds Defiantly to Chief Justice Roberts"; it includes a reprinting of a sharp note authored by a federal court judge in reponse to the Chief Justice's recent report on the federal judiciary (noted here). The whole piece is a must-read for all federal court watchers, and here is a some of what Cohen adds to the discussion:

On Sunday, I wrote this piece criticizing United States Supreme Court Chief Justice John Roberts for his mealy-mouthed annual report on the judiciary.  The chief justice copped out, I believe, by failing to even mention the fact that lower-court federal judges all over the country are sorely understaffed (because of Republican intransigence in the Senate) and under unwarranted, and sometimes just plain crazy, political attack from conservative politicians.

I also found it odd, though I didn't mention it Sunday, that the chief justice did not mention the late John M. Roll, the Chief District Judge of Arizona, who was shot and killed in Tucson last January -- literally in the line of duty -- in the attack on Rep. Gabrielle Giffords. Judge Roll was in line to talk to Rep. Giffords at the supermarket that day to discuss the "judicial emergency" in Arizona caused by too few federal judges trying to handle too many cases.

Instead, the Chief Justice devoted almost his entire 16-page message to defending the Court's recusal practices, which are not nearly as codified or transparent as they ought to be. I didn't analyze the merits of the chief justice's recusal argument because I think it's a dead-end issue. The justices are going to continue to play by their own recusal rules for the same reason they will continue to preclude cameras in their courtroom -- because they can....

There is always an inherent gulf between the justices, who hear a tiny fraction of all cases that come before them, and the rank-and-file federal judges who decide the merits of tens of thousands of cases each year. But that gulf is wider today in the wake of the chief justice's remarks. Amid the clamor over judicial independence, and with scores of judicial nominations left pending to the detriment of litigants everywhere, John Roberts decided that now was the time to devote virtually his entire annual message to an explanation of why the Supreme Court is different from the rest of the federal judiciary when it comes to recusal matters.

That's not leadership. That's trying to cover your butt. No wonder some federal judges are angry during these days of overloaded dockets and threats of judicial subpoenas. I would be, too, if the chief justice who was supposed to be speaking for me was instead reminding me how different the Supreme Court is from the rest of the judiciary.

January 3, 2012 at 04:59 PM | Permalink


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Perhaps Federal judges would get more respect if they didn't decide that they were the appointed managers of prison systems, the deciders on the level of free medical care a State gives to the indigent, and a myriad of other issues. Federal judges have so much work because they want a kritarchy. Perhaps they enjoy the power that comes with their dictatorship, but not the work load. They made their own bed, no lie in it.

Posted by: Federale | Jan 3, 2012 5:34:24 PM

I didn't think the quoted remarks attributed to an anonymous judge were particularly intemperate (much less "defiant") when compared to Mr. Cohen's own remarks in your block quote, but I wonder whether it is desirable for the judge's identity (assuming he or she really exists and is being quoted accurately) to be hidden from view. He or she has life tenure and can't be fired, demoted, or transferred to Antarctica by the Chief Justice. Judges who have interesting, insightful, and perhaps controversial things to say about the operations of the judiciary should perhaps be willing to have their names publicly attached to them if they want their views out there as part of public discourse. Anonymous grousing to journalists as if they were low-level government bureaucrat trying to make their bosses look bad without being retaliated against does not strike me as the sort of behavior that promotes confidence in the judiciary.

Posted by: JWB | Jan 3, 2012 6:19:55 PM

better watch out federale....the overbooked judges could just start looking for any excuse to simply TOSS any case that isn't a major crime....that would clean up thier caseloads real quick.

as for them now knowing that washington was no clue how the other half live.!

Hell guys JOIN THE REST OF US! Most of us have been saying washington has been moved deep into the TWILIGHT ZONE for years!

Posted by: rodsmith | Jan 4, 2012 1:37:37 AM

Criticism is helpful, because the Supreme Court has no justification for its arrogance, mostly built on ignorance, and arbitrary, subjective, biased decision making, mostly in the service of lawyer rent seeking. The political affiliation of the Justice has little to do with the decisions they make.

I would like greater Congressional oversight as well, especially when the Justices legislate from the bench. Impeachment should not be reserved for trivial, collateral corruptions, but for mistakes in substantive decisions. These are now sacrosanct to the detriment of the public interest.

The Congress should also allow private TV companies to record court proceedings, including embarassing napping during heated arguments. These little Caesars known nothing about nothing. Their decisions have the intellectual validity of two year olds throwing things around a room. Bring them down a notch. At least the two year old is not acting in bad faith pursuing lawyer rent.

Posted by: Supremacy Claus | Jan 4, 2012 6:14:28 AM

One cannot solely blame the Republicans for the shortage of justices. Keep in mind that Obama had a rubber-stamp congress the first two years of his presidency, and could have filled up many needed vacancies back then with virtually no opposition. In fact, many progressives are extremely angry that he didn't use this rare situation of a complete executive and legislative branch party control to essentially place whomever he wanted on the benches.

Part of the reason is that the media is pro-Democratic party now, so he felt he would still have popular support even with a GOP congress. However, one cannot just blame the Chief Justice for something that he (the chief justice) has no power over, but has to endure the consequences of lack of judicial colleagues.

Posted by: Eric Knight | Jan 4, 2012 6:16:44 AM

Putting aside for now the complaints and politics already addressed above, it remains important to stress that Roberts is also the Chief Justice of the United States - he is the leader, the speaker for, the head of the federal judiciary. There is really no other spokesperson for the Third Branch. The Chief, for all intents, assumes the role of leader/spokesperson only once a year. Is it too much to expect that he will use that platform to address the issues important to the majority of his colleagues?

Posted by: alan chaset | Jan 4, 2012 8:57:52 AM

Regarding your first paragraph only, I cannot agree that the President had a "rubber stamp" congress his first two years because the facts are to the contrary, but it is certainly true that he did not take his obligation to fill empty federal court seats seriously at all. I find that inexplicable given his background.

In 2001, after the Senator Jeffords switch - Senator Leahy promised to move 100 Bush nominees through the 2001-02 Congress. And he did (113 actually). And the GOP and media pilloried him for not confirming more. To date President Obama has had 124 judges confirmed (as of mid-December) - Obama's confirmation rate is about 1/2 the rate Democratic Party approved the second Bush's nominations.


Posted by: C | Jan 4, 2012 1:49:47 PM

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