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Calling John Roberts—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on October 21, 2010.

Calling John Roberts
By Linda Greenhouse ’78 MSL

As 1997 wound down, Bill Clinton was in the White House, the Republicans controlled the Senate, and the Clinton administration’s judicial nominees were going nowhere. Nearly one in 10 federal judgeships was vacant, a total of 82 vacancies, 26 of which had gone unfilled for more than 18 months. In Democratic hands back in 1994, the Senate had confirmed 101 nominees. In 1997, under the Republicans, the number dropped to 36.

On New Year’s Eve, a major public figure stepped into this gridlock. He was a well-known Republican, and although he had set aside overt partisanship, his conservative credentials remained impeccable. He had given no one a reason to think he was favorably disposed toward the incumbent administration or its judicial nominees. Yet there he was, availing himself of a year-end platform to criticize the Senate and to warn that “vacancies cannot remain at such high levels indefinitely without eroding the quality of justice.”

His name was William H. Rehnquist, chief justice of the United States, using his annual year-end report on the state of the federal judiciary to declare that with “too few judges and too much work,” the judicial system was imperiled by the Senate’s inaction. “The Senate is surely under no obligation to confirm any particular nominee,” he said, “but after the necessary time for inquiry, it should vote him up or vote him down to give the president another chance at filling the vacancy.”

On a traditionally slow news day, Chief Justice Rehnquist’s critique of the Senate got Page 1 attention. More than a few Times readers drinking their late-morning coffee probably did a double take at the headline: “Senate Imperils Judicial System, Rehnquist Says.” In a modest way, it was a Nixon-in-China moment.

Soon it will be time for the office of the current chief justice to start preparing the 2010 year-end report. I am eager to see whether Chief Justice John G. Roberts Jr. will take a page from his mentor and criticize his fellow Republicans — who are functionally even if not formally in charge of the United States Senate — for their role in creating the current judicial vacancy crisis.

The Judicial Conference of the United States, the policy-making arm of the federal courts, which the chief justice heads, has identified 49 of the current 105 vacancies as “judicial emergencies.” This is a nonpolitical designation, based on a formula that takes into account the judicial workload on a particular court and the length of time the position has gone unfilled. The number of “emergencies” has doubled since the start of the Obama administration.

Part of the responsibility for that statistic falls on the president, who has been slower with judicial nominations than either of his two predecessors — neither of whom, of course, had two Supreme Court vacancies to contend with during his first two years in office. (There were no Supreme Court vacancies during President George W. Bush’s entire first term.) The 47 nominations now pending represent fewer than half the existing vacancies. Only last month did the president make a nomination to fill one of two empty seats on the United States Court of Appeals for the District of Columbia Circuit, arguably the second most important federal court in the country. The Sept. 29 nomination of Caitlin J. Halligan, former solicitor general of New York State, came, amazingly enough, on the fifth anniversary of the vacancy that was created when the seat’s former occupant, John Roberts, received his promotion.

Part of the responsibility also no doubt falls on the Senate’s Democratic leadership, which has not made judicial confirmations a top priority. But given the Republicans’ ever-present threat of filibusters and their use of mysterious “holds” on nominees, it’s hard to blame the Democrats. After all, unlike the Republicans, the Democrats have had an affirmative legislative agenda to attend to.

So there’s no doubt that the Senate Republicans deserve the lion’s share of the blame for refusing to permit even uncontroversial judicial nominees to get a floor vote. The Senate ended its pre-election session last month leaving 23 nominees hanging, including 16 who had had hearings and received unanimous favorable votes in the Judiciary Committee. In other words, sheer obstructionism, rather than legitimate disputes over judicial philosophy, is the source of the problem, and here is where Chief Justice Roberts comes in — or can, if he cares to.

Unlike the president’s State of the Union message, which is required by Article II, Section 3 of the Constitution, the annual report on the state of the judiciary is a modern tradition. It was begun just 40 years ago by Chief Justice Warren E. Burger and carried on with enthusiasm by Chief Justice Rehnquist, who often used it for significant pronouncements on judicial policy.

Chief Justice Roberts has had a rather problematic relationship to the tradition during his five years in office. The focus of his first report, on Dec. 31, 2005, was judicial pay. Noting that federal judges’ earning power had eroded by 24 percent since 1969, he said that Congress’s failure to raise judicial salaries presented a “direct threat to judicial independence.” While in my view he was completely right on the merits of the issue, some members of Congress resented what they viewed as hyperbole from the new chief justice, and the public responded with a shrug. The much-deserved pay raise has yet to happen.

Then last year, Chief Justice Roberts went minimalist, so much so that it left many people scratching their heads. Here was his report, in full, minus the statistical appendix:

Chief Justice Warren Burger began the tradition of a yearly report on the federal judiciary in 1970, in remarks he presented to the American Bar Association. He instituted that practice to discuss the problems that federal courts face in administering justice. In the past few years, I have adhered to the tradition that Chief Justice Burger initiated and have provided my perspective on the most critical needs of the judiciary. Many of those needs remain to be addressed. This year, however, when the political branches are faced with so many difficult issues, and when so many of our fellow citizens have been touched by hardship, the public might welcome a year-end report limited to what is essential: The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties. I am privileged and honored to be in a position to thank the judges and court staff throughout the land for their devoted service to the cause of justice.

Best wishes in the New Year.

Tony Mauro, a longtime observer of the court, responded on The Blog of Legal Times, “Imagine if the president, instead of giving a full State of the Union address, sent a note to Congress telling the legislative branch that life is good, all is O.K., and let’s catch up next year.”

I’m willing to assume that last year’s baffling report was the result of judicial modesty rather than an idea deficit. In any event, I look forward to waking up on New Year’s Day to this headline or its reasonable equivalent: “Senate Imperils Judicial System, Roberts Says.”