The Unanimity Factor

From my perspective, one of the worst things that has happened to our federal governmental system has been the increasing efforts to apply political notions to our federal judiciary. Supreme Court nominations have been politicized for a while–although not for long as you might think; former Justice Antonin Scalia, a conservative stalwart, was confirmed by a unanimous Senate, 98-0, in September 1986–but now circuit court and even district court nominations are being treated politically, too. For example, Law360, which does daily on-line reporting on legal issues, breathlessly reports on how many judges President Biden (and before him, President Trump) is appointing, how many vacancies are open, and similar information, as if the make-up of the federal judiciary is some kind of political horse race.

And to read what some people have to say about the Supreme Court, you’d think that the Court is hopelessly divided along partisan political grounds, and that those Justices in black robes are at each others’ throats and at risk of throwing punches and karate kicks.

That’s why it’s interesting to observe that the Supreme Court has issued a remarkable number of unanimous decisions this term, for a Court that is supposed to be a festering sore of reflexive political division. And as we approach the end of the Court’s term, when many of the biggest and most controversial decisions traditionally are announced, the theme of unanimity has continued. That means that the Justices who some would contend are motivated entirely by their political affiliations have somehow managed to set aside their differences and mysteriously reach the same decision on the case presented to them.

The unanimity has occurred in a broad sweep of cases, including cases involving the authority of tribal police, whether there should be a presumption in favor of the credibility of immigrants, cases involving unlawful entry into the United States and an environmental clean-up dispute between the U.S. government and Guam, and cases involving the interpretation of a federal statute involving efforts to block collection of a tax and the scope of an exception to the Fourth Amendment prohibition on warrantless searches and seizures. And just this week, the Court issued another unanimous decision on whether the City of Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless that organization certified same-sex couples as foster parents violates the free exercise of religion clause of the First Amendment.

The issue here isn’t whether the Court’s decisions are right or wrong on their merits, or as a matter of public policy. The key point is that a Court that is supposed to be on the verge of ideological fisticuffs is somehow managing to reach complete agreement on how to resolve a slew of controversial cases. And people have noticed the many instances of unanimity, and some have wondered whether the Court is trying to send a message to those who view its work in political terms.

Maybe, just maybe, the women and men who make up the highest court in the land are simply acting as impartial, fair-minded judges deciding the cases before them, on their merits and without regard to politics. It would be wonderful if the media, and the politicians, and the pundits and commentators who want to turn the federal judiciary into another political arm of government could just assimilate that reality–but in our current hyper-politicized times, that’s probably just too much to ask for. If only they were as objective and fair-minded as our jurists.

Barack Obama And George W. Bush

New York magazine has an interesting article with a headline no one thought they would see after President Obama’s triumph in the 2008 presidential election.  The headline is:  Barack Obama Is Not George W. Bush.

The comparison is being made by some because President Obama’s approval ratings have dropped to levels at or below the levels for President Bush at the same point in the second term his presidency.  The article argues that although the approval ratings are similar, the reality of the two presidents is much different:  President Bush had bipartisan support and lost it, and President Obama never had bipartisan support to begin with.  The article contends that President Obama’s dropping ratings are due to diehard, unending opposition that has been adopted as a tactical matter by Republican leaders.

I’m not convinced by that contention, which strikes me as a bit of a dodge.  The implication is that President Obama’s policies have nothing to do with his falling popularity, or with the opposition to his initiatives — the Republican tactics are wholly responsible because they have made the President look “partisan.”  In reality, I think, the opposition to many of the President’s proposals, such as the Affordable Care Act, is due to disagreement with the merits of those proposals:  Republicans and many independents thought they were bad ideas, and nothing that has happened since the recent rollout of healthcare.gov and the insurance exchanges has caused them to change their minds.  The mismanagement of the “Obamacare” rollout, and the President’s claimed unawareness of governmental actions like the NSA’s surveillance programs, also have caused people to question the President’s competence.  Those are self-inflicted wounds, not the product of stalwart opposition.

One other aspect of the New York piece is troubling.  It forecasts that the remainder of the President’s term will focus on executive action, where the President simply announces decisions without having to win approval from Congress.  We are already seeing that with some of the recent decisions to waive enforcement of various provisions of the Affordable Care Act.  That process is troubling in and of itself, but even more troubling is that the political focus has shifted from Congress to the federal judiciary — specifically, the federal court of appeals for the District of Columbia, which hears appeals of many administrative decisions.  The New York article states that Republicans have had a “functional majority” on the D.C. Circuit, and argues that the recent changes to the filibuster rules will allow President Obama and Senate Democrats to approve nominees to that court who will approve the President’s expanded use of “executive powers.”

This kind of frank assessment of the politics of a federal court should be disturbing to everyone.  Our government has been increasingly politicized in recent decades, and it hasn’t exactly worked well for our country.  If the judicial branch — which, with its lifetime tenure, is supposed to be immune from base political considerations — becomes explicitly politicized, it will not be a good development for the United States of America.

Sequestration And The Federal Courts

How foolish is managing the federal budget through the across-the-board “sequestration” process?  The federal judicial system provides a good illustration of the chaotic lunacy that prevails when the President and Members of Congress fail to do their jobs and enact thoughtful, considered budgets.

From a budgeting standpoint, the judiciary is unique.  Unlike other agencies and entities, it doesn’t operate grant programs or distribute benefit checks or buy advertising to discourage drunk driving or promulgate regulations.  Instead, it exists solely to resolve disputes and try those accused of federal crimes.  Its budget is spent largely on people — on judges and their law clerks, bailiffs and court reporters, docket clerks and security personnel — who make the system function smoothly.

Sequestration will require $350 million in cuts to the federal judicial system.  Because federal judges are appointed for life and will be paid regardless of how fiscally irresponsible the President and Congress may be, the cuts that sequestration brings will fall disproportionately on the other people who are part of the process.  As a result, court security operations will be impaired, federal oversight of those free on bond prior to trial and those paroled from federal prisons will be reduced, and jury trials and bankruptcy proceedings will be delayed due to lack of funds — among other consequences.

A capable court system is one of the bedrock requirements of a free, well-ordered society.  The role of federal courts has become increasingly important as new regulations are produced and challenged, as new federal crimes are created, and as courts are increasingly viewed as the ultimate arbiter of all manner of disputes.  Why, then, should federal courts be subject to the same across-the-board budgeting treatment as federal agencies and programs whose purpose is much less fundamental to the proper functioning of government and society?

The President and Congress need to start doing their jobs.

Newt, Or Nut?

Republicans are on pins and needles as the Iowa caucuses draw near.  They want the 2012 election to focus on President Obama and his record.  They think that if the election is about unemployment and the recession that won’t end, they’ll win.

This strategy presupposes the Republicans pick a reasonable candidate.  If they nominate somebody who seems like a nut, the focus will shift from familiar stories about the crappy economy to novel stories about the Republican’s nutty positions.  If that happens, President Obama’s chances of re-election increase dramatically.

Most people put Ron Paul and Michele Bachmann in the “nut” category.  The challenge for Newt Gingrich is to stay out of that category — but his comments about the federal judiciary aren’t helping.

Gingrich has railed against activist judges, has talked about abolishing entire courts to try to rein in the judiciary, and has even discussed sending marshals to arrest judges and bring them to testify before congressional committees.  His point seems to be that the federal judiciary is too powerful and the other two branches of government need to rein in the judges.  Regardless of whether you agree or disagree with that point, the notion of eliminating courts and haling judges before Congress is too nutty for most Americans.  It runs counter to notions of separation of powers, and respect for equal branches of government, that most Americans hold dear.  It also raises the specter of a President who might disastrously overreact in a moment of crisis.

I’m not surprised that Gingrich’s meteoric rise in the polls seems to be reversing itself.  He talks a lot — and often he seems to talk without really thinking things through.  When he does, he sounds like . . . a nut.