Keep those federal judges coming

The decision by a federal judge on Tuesday to dismiss a lawsuit, brought by a Christian group, against the new health care law is proof of just how important federal judicial appointments are.

Judge Gladys Kessler of Federal District Court for the District of Columbia ruled against Pat Robertson’s group’s claim that they oppose the mandate to buy health insurance as unconstitutional on religious grounds.

As The New York Times reports, it’s important to note that Judge Kessler was appointed by a Democratic president, Bill Clinton, and the other rulings that Obama’s new health care law is “unconstitutional” were both made by judges who were nominees of Republican presidents.

Federal courts are vital to checks and balances. They exist to interpret statutes that Congress passes, and the president signs. They are also called upon when a question arises as to constitutional validity.

Notably, federal judges, like Supreme Court justices, serve for life, and can only be removed by impeachment and conviction. They may, of course, choose to resign, or retire.

In his first two years alone, President Obama has already matched his predecessors, George H.W. Bush, Bill Clinton, and George W. Bush, in naming two justices of the Supreme Court. He has also managed to nominate close to 100 federal judges, but 45 federal judicial nominations are currently waiting for action by the Senate.

There are reportedly 16 vacancies on the U.S. Court of Appeals, more than 80 on district courts, and another 20 anticipated vacancies before the end of Obama’s first term. Openings for federal court judges are unpredictable, and can change the moment a judge decides it’s time to retire.

It’s not uncommon for presidents to use recess periods to make appointments. Importantly, there hasn’t been one recess appointment to the federal courts on Obama’s watch.

George W. Bush made so many recess appointments that “recess” could have been his middle name.

As of 2009, approximately 3,000 individuals have been appointed to federal judgeships. They earn about $170,000 a year which is about what a member of Congress earns. Chief Justice John Roberts, a George W. Bush appointee, has been vocal in urging an increase in judicial pay. Clearly, Judge Roberts doesn’t think “austerity” should apply to anyone on the bench.

Of the 3,000, nearly 2,500 are district court judges, and about 700 serve on courts of appeals.

Despite exhortations against “judicial activism” from the previous administration, it’s no secret that appointment of federal judges is political. Not surprisingly, given that two-thirds of the presidents in the past 30 years have been Republicans, a majority of the federal judges have been Republican presidential nominees.

President George H.W. Bush got to pick two Supreme Court justices, and about 200 federal judges in one term

In his eight years in office, President Clinton matched his predecessor in terms of the number of Supreme Court appointments, as well as appointing 400 federal judges. The two generations of Bush combined are responsible for nominating more than 500 federal judges.

If the trend continues with contrarian, and uber-conservative Republicans now in charge, we may expect to see any legislation the president tries to put forward, over the next two years, subject to litigation of one sort or another. After all, it’s not considered a “frivolous” lawsuit when a member of the “austerity” club is behind it.

Given that the average age of justices on the Supreme Court is somewhere around 65, there is a strong possibility that Mr. Obama will have the opportunity to nominate at least one more justice to the Supreme Court, and fill perhaps twice the anticipated federal judicial vacancies.

It would be in the best interest of both the president and the country if Mr. Obama would begin pushing those 45 federal judicial nominees through the Senate, and filling every federal vacancy he can. Not to move, and move quickly on this can only be seen deliberate compliance with a dangerously reactionary agenda.

Jayne Lyn Stahl is a widely published poet, essayist, playwright, and screenwriter, member of PEN American Center, and PEN USA.