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January 01, 2009

Federal Judicial Independence

by Russell Wheeler

The U.S. effort to calibrate judicial independence and judicial accountability met a fork in the road in the early 1800s. States replaced the federal model of executive appointments and essentially life terms with judicial elections for short terms. There is justification for different protections for state and federal judges. To be sure, state courts, especially supreme courts, confront cases pitting minority rights against popular preferences. State judges, though, are by nature closer to the people, and while they deserve relief from short election cycles and money-driven election campaigns, selection and tenure arrangements that tie them to people are consistent with the U.S. judicial tradition.

Federal judges tend to confront more difficult cases - cases in which the decision that the judge believes is legally dictated may well be unpopular. As long as the country is committed, even in an unarticulated way, to the idea that some group of judges must protect unpopular minorities from momentarily popular majorities, those judges need protections against reprisals from Congress or the ballot box. John Adams wrote in his influential 1776 pamphlet, Thoughts on Government , that judges’ “minds should not be distracted with jarring interests.” Although we want judges to be of the world, we do not want them worrying about how their interest in making an unpopular decision might affect their interest in a secure livelihood.

Still, federal judicial independence should not be judicial autonomy. Read literally, Adams’s next admonition - judges “should not be dependent upon any man, or body of men”Сwould have judges selecting other judges and tapping, on their own, the U.S. Treasury for funds. Such a world would be starkly at odds with republican government, which demands a prominent role for the executive and legislature in selecting judges, and for the legislature, principally, in organizing and funding the judicial branch and overseeing its operations.

Periodically, some in Congress up the oversight ante into visceral attacks on federal judges and their independent decision making. The most recent period of court-curbing efforts - roughly the mid 1990s to 2006 - generated a lot of handwringing that legislators’ crude and unwarranted attacks on judges seriously jeopardized federal judicial independence. But the court curbers overplayed their hand, effected no major changes in the federal judicial system, and for the most part are now either out of office or on the legislative sidelines. (Attacks on state judicial independence in the same period and beyond is a different matter, however.)

The more interesting story of federal judicial independence involves the other branches’ often subtle and complicated attempts to hold federal judges and the judicial branch accountable to popular government without allowing the jarring interests of which Adams spoke to affect judicial decision making. The balancing can be tricky and plays out in three broad areas: (1) selection and tenure, (2)
control of judicial branch operations, and (3) attacks on judges and their decisions.

In this article, “federal judges” mean those occupying the 871 district, appellate, and supreme court judgeships (plus judges who work on cases but have retired from full-time service on those courts). But most federal government judges do not have these 871-plus judges tenure and salary protections. The other 947 judges in the judicial branch include bankruptcy judges (whom circuit judges select for fourteen-year renewable terms) and magistrate judges (whom district judges select, mostly for eight-year renewable terms). Beyond these and a handful of other term-limited judges in the judicial branch are several thousand executive branch judges of various titles (administrative law judges, immigration judges, presiding officers, hearing examiners, and so on).

No sensible person claims that these judges all need the Constitution’s tenure and salary protections. Still, consider, for example, bankruptcy judges’ crucial role in high-stakes proceedings during economic crises. Or what about the Justice Department’s two hundred or so immigration judges, who are selected, supervised, and subject to discipline by the country’s chief law enforcement officer? They decide annually over 270,000 cases in which aliens allegedly in the country illegally - not a popular minority - seek to block their removal from the United States, often claiming a fear of persecution or torture if returned to their home country.

The undesirability of extending constitutional protections to all federal judges does not put to rest whether some of them need more protections to bolster independent decision making - a question, alas, beyond the word limits of this article.

Selection and Tenure

Judicial selection. Federal judges get their office by presidential nomination and Senate confirmation. In any administration, going back to George Washington’s, roughly nine of every ten judicial appointees have been at least nominal members of the president’s party. This fact shocks foreign observers, who conclude that creatures of a partisan selection process cannot decide cases independently of the politicians who gave them their jobs. In the United States, though, it would be a front page scandal if news leaked that a judge took a telephone call from a political sponsor about a case sub judice . Different political cultures develop different concepts of the role of a judge.

That said, the selection process may have two other effects on independent decision making. One may expand it beyond reasonable limits; the other may unreasonably constrain it.

First, how judges decide cases is related, albeit weakly, to the party of the president who appointed them. This “party effect” on judicial decision making undergirds a widespread assumption that popularly elected presidents, by filling vacancies with appointees whose views are generally in sync with theirs, keep the life-tenured judicial branch from becoming too independent - too undemocratic - without intervening in any individual judge’s decision making.

Federal judges, though, now serve much longer than in earlier years, much further beyond the administration that appointed them than in the years when the presidential-appointment-as-accountability-theory developed. As longevity in office grows, the judiciary may appear as a largely superindependent vestige of long-gone presidents and senates. One suggested remedy for this situation is fixed terms of fifteen or eighteen years for Supreme Court, and perhaps circuit judges, after which they could leave the bench or serve in other judicial capacities (Supreme Court justices, for example, on the courts of appeals). Such mechanical rotation would not seem to threaten independent judicial decision making. So far, though, this idea, with its share of predicted downsides, is mainly a bipartisan preoccupation of the academy.

The other way in which the selection process may affect - in this case, weaken - judicial independence is its growing contentiousness, especially for Supreme Court and court of appeals judges. Circuit judge confirmation rates of 90 percent and above in the Reagan and previous administrations were in the low 70 percent range in the Clinton and second Bush administrations. The time from nomination to confirmation has lengthened from an average of 50 to 60 days to over 160 days for those two administrations and much longer for the growing number of judges who are renominated in subsequent Congresses after their initial nominations fail.

These figures, to many observers, are the outward signs of a process that puts an increasing premium on nominees’ trying to satisfy interest-group-driven blocs of senators, somewhat analogous to the demands for upfront commitments that some state judicial candidates face as a result of the Supreme Court’s decision in Republican Party v. White , 536 U.S. 765 (2002). Ben Wittes stated the nominees’ dilemma: those who are forced to satisfy senators about how they will decide cases “cannot provide the Senate what it wants without either ceding to its members some little bit of his or her ability to decide controversial cases or misleadingly appearing to do so.” Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times 102 (2006).

President Barack Obama’s strong majority in the 111th Senate may ease the confirmation wars temporarily, but they will return some day. The ramifications for judicial independence may be several-fold: teaching the public that judging is simply an expression of political power, and teaching would-be judges who may not have thought of themselves as partisans to reconsider. More important, if the Senate becomes willing to abandon its long-standing refusal to use the confirmation process to extract quid pro quos from judges, will Congress be ready to junk other widely accepted independence-preserving conventions in favor of using powers legitimately at its disposal to bend the courts to its will? Tools include financial punishment, jurisdictional marginalization, and impeaching judges who do not toe the mark.

Judicial discipline. That the Constitution allows federal judges to “hold their offices during good Behaviour” hardly puts their nondecisional behavior beyond regulation or corrective measures. Some members of Congress over the last decade garnered public attention by bandying about impeachment threats - for example, for federal judges’ 2005 refusal to intervene in the Terri Schiavo state litigation - and the House Judiciary Committee, with impeachment an unstated possibility, investigated several federal judges over, for example, sentencing practices and procedures in a school desegregation case. These misguided efforts died down, though, and impeachment remains a rarely used device - thirteen times in U.S. history, with seven convictions (a number, as explained below, that may rise soon). Legislators also proposed an “inspector general” for the federal judiciary, ostensibly to investigate waste and abuse but which could, critics charged, tend to concentrate such investigations on judges who authored controversial rulings. Judges saw intimidation threats in these actions, even though the actions and accompanying rhetoric have subsided considerably.

More attenuated efforts to balance independence and accountability play out in the administration of a host of statutes and procedures regulating federal judicial behavior. Judges often see behavior-regulating statutes as stalking horses to compromise their independence, a skepticism that renders some judges tone-deaf to legitimate legislative interest in judicial branch transparency.

Statutes, for example, limit federal judges’ outside income and ability to accept gifts, and mandate they recuse themselves in cases in which they own even one share of stock in one of the parties. When critics, especially environmental groups, objected that federal judges accepted gifts of expense-paid trips to law and economic seminars put on by groups that critics charged had ideological agendas, the Judicial Conference required judges to post their seminar attendance on court websites. When news stories revealed that some judges were sitting, probably unwittingly, on cases in which they had minor stock holdings, the Judicial Conference directed judges to use “conflict avoidance” software that would spot any parties in which the judge had an interest.

Another effort to balance independence and accountability is a 1980 statutory procedure by which anyone can complain to the chief judge of the respective federal judicial circuit that a federal judge within that circuit has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or is unable to discharge judicial duties because of a mental or physical disability. 28 U.S.C. ¤ 351(a). Judges feared the statute would open them to nuisance attacks for their decisions and vigorously opposed earlier versions of the bill that would have established new bodies to consider misconduct complaints. The federal system of disciplinary review stands apart from those in almost every state, in which nonjudges participate to varying degrees.

In fact, chief judges dismiss almost all complaintsСrather than have judge committees investigate them and refer them to all-judge circuit councils for disposition - because the complaints involve the merits of a judicial decision. A 2005Р06 study by a committee chaired by Justice Stephen Breyer found that chief judges properly handled almost all of the several hundred complaints the committee sampled. But in the small number of well-publicized complaints, the chief circuit judges’ and circuit councils’ error rates were considerably higher, which could create public skepticism that the judiciary was not adequately policing its members and needed outside intervention.

And the judicial branch has something of a mixed record since the committee reported in late 2006. A court employee accused a federal judge of sexual harassment in 2007, an accusation that eventually led to a federal grand jury indictment. The circuit council initially treated the precursor complaint with a mild admonition but, regardless of the trial’s outcome, an impeachment inquiry could result. The chief judge in another circuit declined to investigate news reports that a district judge urged newly naturalized citizens to vote for a specific congressional candidate, and, when someone filed a complaint based on the reports, the chief judge dismissed the complaint basically on the ground that the district judge denied the allegations. In late 2008, the House of Representatives, on the Judicial Conference’s recommendation, geared up for an impeachment investigation of one judge for, among other things, lying in his own bankruptcy proceeding. Another judge resigned after several months of news stories suggesting that he pulled rank to deny a wheelchair user a handicapped parking space and patronized a prostitution business. A circuit council committee is investigating allegations that still another judge posted sexual photographs on a website that, contrary to his claims, was available to the public and for earlier allegations of compromising the federal courts’ computer network to resist internal monitoring.

These charges, most of which have yet to play out in court, Congress, or within the judiciary, are most likely aberrations and may represent no greater level of questionable behavior than has always affected the federal judiciary. Nevertheless, in an era that demands transparency in government operations, the specter of federal judges exhibiting such behavior may undermine long-term notions of the value of judicial independence.

Control of Judicial Branch Operations

Congress has created all federal courts but the constitutionally created Supreme Court. Congress determines the number of judgeships, delineates jurisdiction, sets salaries, and provides operating funds. It enacts or approves the national rules that govern how judges manage cases and sentence criminals, and prescribes numerous aspects of court operations - jury selection, for example. And Congress, in hearings and other forums, oversees how judges and their staffs manage the courts, holding them accountable for how they spend the roughly $6 billion annual appropriations; manage 30,000 employees; and treat litigants, jurors, and witnesses.

Most of this administrative activity bears little on judges’ independent decision making but some areas have the potential to do so.

Funding. Each year Congress provides the federal courts funds for salaries, rent, equipment, travel, and other operating costs. Incipient threats to independent judicial decision making might arise in this annual process, but Congress has taken steps to reduce that possibility. First, it has directed the president to insert the judicial branch-developed appropriations request “without change” into the overall government-wide budget request he sends to Congress, partly to preclude the executive branch from fiddling with the courts’ request as a carrot or a stick for favorable decisions.

Second, Congress has historically eschewed its own use of the purse strings to intervene in individual cases or to punish judges. Only twice in U.S. history has it abolished courts in order to displace judges it did not like (once in the early nineteenth century and again in the early twentieth). Occasionally, legislators introduce bills to prohibit funding to implement an unpopular judicial decision, but these symbolic gestures would have little impact if enacted.

And even though courts cannot horse-trade in budget negotiations - go easy, say, on Congress’s statutory output in return for more money - Congress has generally funded the courts adequately in recent years, and comparatively speaking, more generously than the rest of the government. According to figures in the most recent Historical Table 4.1 accompanying the U.S. budget (available here ), for example, funding for the courts grew by 1310 percent since 1978, while funding for Congress and all agencies grew by 331 percent and 539 percent respectively.

Salaries. JudgesСstate and federalСhave long bemoaned their comparatively low salaries. Chief Justice John Roberts, every year since assuming office, has prodded Congress to restore the salary increases that judges would have received had Congress provided all, not just some, of the annual salary increases that it seemed to promise in 1989. (Justice Breyer, in fact, has argued that failing to provide promised annual increases may be an unconstitutional salary diminution.)

Rarely, though, have complaints about salaries laid the specific charge that Congress failed to increase them as punishment for judicial decisions. Rather, judges have complained that Congress has seriously bungled rational salary setting.

There is, in the debate, however, an inkling of the fear of the jarring interests about which Adams warned. Chief Justice Roberts noted in early 2007 that thirty-eight federal judges had resigned in the previous six years, including seventeen in 2005 and 2006. If “appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice,” he warned, “the Framers’ goal of a truly independent judiciary will be placed in serious jeopardy.” Hon. John Roberts, 2006 Year-End Report on the Federal Judiciary , 39 Third Branch 1 (Jan. 2007). Not stated directly, but clearly implied, is that judges’ decisions might be subtly influenced by how they might appear to potential employers.

Intrusion on judicial decision making and other provinces. No bright line defines where legislative policy making invades judicial prerogatives. The most sensitive areas involve judicial decision making and related activities. A firestorm broke out in 2003 after Congress curtailed judges’ (since expanded) sentencing discretion and told the Justice Department to report judges’ sentences to Congress. When Congress tried to rein in judicial citations of foreign legal materials, even conservative judges said it was none of Congress’s business.

Nerves get raw over other perceived intrusions that judges think may poach on their prerogatives and possibly their independence. Justice Anthony Kennedy may have had jarring interests in mind when he pleaded with Congress at a 2007 hearing not to mandate television coverage of judicial proceedings and thus “introduce into the dynamics that I have with my colleagues the temptation, the insidious temptation, to think that one of my colleagues is trying to get a sound bite for the television.” Mark Sherman, Justice Kennedy Says Morale Low Over Pay , Wash. Post, Feb. 14, 2007. This plea, though, did not persuade a majority of the Senate Judiciary Committee, which voted out a bill mandating such coverage as a transparency antidote to perceived Supreme Court reluctance to accommodate public interest in its proceedings.

Attacks on Judicial Decisions

The country in 2005 and 2006 saw a rash of bills to strip federal courts of jurisdiction in cases involving public displays of religion, same-sex marriage, abortion, and the Pledge of Allegiance. Such legislation might be seen as a threat to judgesСin short, “keep exercising this jurisdiction in a way we find offensive, and we’ll take it away.” This spate of bills, though, was notable for lack of success. Few got hearings, and only one, involving the Pledge of Allegiance, was adopted even once by even one house of Congress.

Although the extent of Congress’s authority to strip courts of large swaths of federal jurisdiction is a subject of debate, less flagrant jurisdictional adjustments are commonplace and well within bounds. Although some observers were uneasy in the 1990s when Congress restricted federal court jurisdiction over state inmates’ collateral attacks on their convictions or the conditions of their incarceration, or over immigration court decisions, few argued that Congress had exceeded its authority. It is also well accepted that, outside of constitutional interpretation, Congress can reverse judicial decisions by statute, and courts sometimes invite it to do so. And some of the Constitution’s twenty-seven amendments reversed unpopular Supreme Court decisions.


The last decade’s furor over legislative and interest group efforts to limit - some might say emasculate - federal judicial independence produced much more smoke than fire, but even the smoke merited vigilance lest it lead to real damage.

The larger lesson of this latest period of federal-court-curbing efforts is that, at least until now, the Constitution’s tenure and salary provisions have been a necessary but not the sole protector of federal judicial independence. Just as important, Congress - at least its cooler heads on both sides of the aisle - has continued to honor strong but informal conventions that it will not use authorities it undoubtedly possesses to bend the federal judiciary from independent decision making to compliance with popular opinion.

Russell Wheeler

Russell Wheeler is president of the Governance Institute and a visiting fellow at the Brookings Institution in Washington, D.C., where he studies the selection of U.S. judges and how courts function with other branches of government and the press. He is a former deputy director of the Federal Judicial Center.