This newsletter is part of our reconstructing American government series. In prior issues, we called for a revamped Federalism, a new public service model, law enforcement reform and decentralizing federal agencies and reforming Congress. This week, we propose a good governance approach to revitalizing our federal courts.
The media is focused on court packing—as if the only thing that matters is the ideological balance of the Supreme Court.
As we watch another sordid Supreme Court nomination process play out—this time in the midst of a still-surging pandemic—we are once again distracted. The media grills the candidates about political gamesmanship. The Republicans raise the specter of Democratic court packing and the Democrats accuse the GOP of court stacking. Too often overlooked is the long-term damage of politicizing the federal courts. If every judge is selected for ideological reasons, it will be much harder to view them as independent seekers of truth and arbiters of justice (My Cousin Vinny).
What can be done to make the federal courts more impartial, independent and just?
Do we really want the politicization of the Supreme Court to continue? The hypocrisy? The refusal to hold hearings? The ugly nomination process? The personal attacks on nominees? The refusal to answer questions? What will be the long-term impact on the people’s trust in the courts as an institution? What can we do to ensure that future federal courts inspire the kind of impartial respect shown in the closing courtroom scene of To Kill a Mockingbird?
Instead of pushing overtly political schemes to change the ideological balance of the Supreme Court, let’s reassess and reform the entire federal court system from the ground up.
Our founders envisioned the judiciary as the third branch of government, a pillar of our constitutional checks and balances. If it is beholden to political forces, its independence is no longer assured. If it is micro-managed by legislators, its ability to mete justice efficiently and effectively is fettered. If it is unduly influenced by private interests, its commitment to the public interest is abated. We urge reforms to the entire judicial system, ideas we will present in more detail this week. You can learn more about reconstructing government at Civic Way.
Denmark – with the highest ranking in the World Justice Project’sRule of Law Index, Denmark has a three-tier judicial system with at least two distinctive features: a Special Court of Indictment and Revision to consider disciplinary sanctions against judges and an independent Court Administration unit
Netherlands – ranked 5th of 113 nations in World Justice Project’s Rule of Law Index (1st in the civil justice system subcategory), Netherlands has a hierarchical court system that, on average, completes a trial in 87 days; its Supreme Court has 35 judges
Syracuse University – the university’s Transactional Records Access Clearinghouse (TRAC) shows how a small entity can use the Freedom of Information Act (FOIA) to gather, analyze and distribute comprehensive information about federal staffing, spending, laws and practices, including federal court information
Reform the Court, but Don’t Pack It, Ryan Doerfler & Samuel Moyn, The Atlantic (8-20)
Structural Reforms to the Federal Judiciary, Danielle Root and Sam Berger, Center for American Progress (5-19)
Should we restructure the Supreme Court? Russell Wheeler, Brookings Institute (3-20)
Reforming the Court, John G. Grove, National Affairs, Winter 2020
Supreme Court Appointment Process: Senate Debate and Confirmation Vote, Congressional Research Service (10-20)
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