Eight decades later, Senate Republicans played politics with the court in a different way last year by refusing to consider President Obama's nomination of the veteran federal judge Merrick Garland left by the death of Justice Antonin Scalia. Some on the political and legal left speculated that Roberts might speak out against the obstruction. But Roberts stayed completely silent even as the unfilled vacancy left four significant cases partly unresolved because of 4-4 splits among the remaining eight justices.
Senate Republicans extended their obstructionist policies to the lower federal courts by all but shutting down the confirmation process for Obama's nominees to district court and circuit courts of appeals. As the year ended, federal courts had an historically high number of 107 vacancies, including 84 district court judgeships and 14 on circuit courts. Obama had submitted nominees for 84 of the positions, and the Senate Judiciary Committee had approved 25 for floor votes. But all were left hanging as the 114th Congress was set to expire on Tuesday [Jan. 3].
Roberts followed the now established practice on New Year's Eve of issuing an annual report on the "State of the Judiciary." He devoted the 10-page report to effusive praise for federal district court judges, who he said "make a difference every day" by staffing the first rung in the federal judicial system. Oddly absent, however, was the anodyne reassurance included in several of his previous reports that the state of the federal judiciary was "strong."
To the contrary, the federal judiciary has become collateral damage in the uncommonly bitter partisan, regional, and class warfare that consumed the country throughout the presidential campaign. The death of the conservative icon Scalia naturally touched off a high-stakes political fight, but the Senate Republicans' refusal to grant Garland a hearing was literally unprecedented since the beginning of confirmation hearings early in the 20th century.
The year-long slowdown on Obama nominees for the lower federal court leaves almost exactly twice the number of vacancies that Obama inherited at the end of George W. Bush's presidency. Sheldon Goldman, a professor at the University of Massachusetts-Amherst and the leading academic expert on federal judicial appointments, calls the Senate's record over the past two years "the worst in American history in terms of obstruction and delay."
Combined with the Supreme Court vacancy, the lower court vacancies give the new president an early chance to start reshaping the federal judiciary. Obama leaves a legacy of the most diverse federal judiciary in history: he named a record number of women, African Americans, Hispanics, and Latinos to the federal bench. Out of 14 openly LGBT individuals he nominated for federal judgeships, the Senate confirmed 11 bringing the total number now to 12.
Trump seems unlikely to have any similar interest in diversity. To judge from his list of Supreme Court possibilities, he seems interested in satisfying the legal conservative groups that served as feeders and vetters for the Bush administration. Even with Democrats outnumbered 52-48 in the Senate, trench warfare seems inevitable, with some adverse effect on public confidence in the impartiality of the federal bench.
Roberts might have said at least a word or two about the fighting over the vacancies, but never did not during the year and not even the first word in his annual report. Admittedly, Supreme Court justices typically sit on the sidelines as the president and the Senate work to fill the federal bench, even seats on the Supreme Court itself. As Hughes realized, however, unusual times demand unusual actions.
Neither the court nor the federal judiciary was well served by Roberts' institutional self-restraint, if that is what it was. As a Republican appointee, Roberts could also be suspected of partisan complicity in the Republican tactics. Garland's confirmation, after all, would have left Roberts with a five-justice liberal-leaning majority.
Roberts' silence was "a missed opportunity for leadership," says Gabe Roth, the executive director of the reformist FixtheCourt.com. "Given all the partisan rancor, there was a need for an adult in the room." Apart from the Supreme Court vacancy, Roth sees blame for both parties in the judicial battles. "Republicans try to find the most conservative judges," he says. "Democrats try to find the most liberal."
Roth likes the practice adopted during the Carter administration of using specially created judicial selection commissions to screen federal judge nominees at the state or circuit level. Roberts might have used his position as a "bully pulpit to tryi to fix the broken process," he says. With Trump set to take office, "things are going to get weird," Roth warns. "There's no better time to try to come up with a better system."
In his annual message, Roberts had warm and appreciative words for the nation's 600-plus federal district court judges, but just that. Federal judges and those who look to the federal courts for effective and impartial justice might understandably have hoped for and even expected more.