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Tuesday, February 22, 2011
JUDGES AND POLITICS: OUR DISTORTED VIEW
Citing the examples of John Marshall, Charles Evans Hughes, and William O. Douglas, Feldman demonstrated that politics and the Court have always mingled. Indeed, Hughes, pictured here, was the Republican nominee for president in 1916, only resigning from the Court after the party’s convention had started and the nomination was in the bag. He lost that election to Woodrow Wilson; then, fourteen years later was appointed by Republican president Herbert Hoover as Chief Justice. Of course, the man he succeeded as Chief Justice, William Howard Taft, had actual served as president, from 1913 to 1917.
Now comes another take on politics and the courts, by former PJP faculty member Susan Estrich. In an insightful essay published by creators.com. Estrich argues that a disproportionate concern over mixing politics and the courts is holding up too many federal judicial appointments, overburdening an under-populated federal judiciary. “One out of every nice seats on the federal bench is vacant,” writes Estrich. “Half of the vacancies are in districts with multiple vacancies that have literally declared ‘judicial emergencies’ because they have more cases (many of them criminal and thus subject to speedy trial requirements) than they can handle.”
The irony, argues Estrich, is that while most of a federal judge’s work is outside the realm of politics, the reason that so many judicial appointments have been held up is to serve political ends. “There is a myth that seems to animate Senate review of judges: that every day on the federal bench you decide Roe v. Wade, that every day you decide whether gay marriage is lawful, whether Arizona's immigration law is unconstitutional or whether the president's health care bill gets thrown out. It ain't so. Most judges don't decide a single such case in a lifetime.”