by Marissa Brown, Director, Coalition for a Better Court
Since 1970 every New Year’s Eve at 6:00 p.m., the Chief Justice releases a Year-End Report on the Federal Judiciary. As Chief Justice John Roberts pointed out in 2009, Chief Justice Warren Burger established the report “to discuss the problems that federal courts face in administering justice.”
In 2016, the spirit of this almost 50-year tradition was broken.
The most recent Year-End Report on the Federal Judiciary is most notable for failing to discuss the big problems. It is silent on the unprecedented obstruction of a highly-qualified nominee to the Supreme Court of the United Sates. It did not mention that more than 10 percent of the federal bench is vacant due to the U.S. Senate majority’s failure to perform their duties to give advice and consent to many of President Obama’s judicial nominees. And most damaging of all, it did not address the perception that the court has become polarized and partisan.
Despite the Chief Justice ignoring the problem in his 2016 report, legal scholars across the political spectrum are concerned about the court’s perception of bias. Now a more than 200-year old debate is quietly awakening again. One side likes to quote Alexander Hamilton’s writing in Federalist Paper No. 78, presenting a case for permanent tenure of Supreme Court justices as a way to ensure judicial independence. However, reality has smashed this idea that life tenure of justices protects against the politicization of the federal bench.
Fortunately, there is another compelling proposal articulated by legal scholars that instead of life tenure, each justice should be nominated for staggered, 18-year terms so that each president, regardless of party affiliation, would nominate a Supreme Court justice every two years during the court’s summer recess in non-congressional-election years. With periodic nominations, the justices would more accurately reflect the changes and judgments of society.