Constitution Daily

Smart conversation from the National Constitution Center


February 22, 2011 by NCC Staff


In a recent Op-ed piece in the New York Times, Harvard law professor Noah Feldman bemoaned what he saw as the overreaction to the recent stories about Justice Antonin Scalia addressing a group of conservatives headed by Minnesota representative Michele Bachmann and about Justice Clarence Thomas's wife, Ginny, working for a Tea Party lobby. “The core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics,” asserted Feldman. “The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.”

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 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.”

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