International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2016 Issue



The United States Judiciary and Judicial Institutions in Harm’s Way – A Cause for Alarm

Dr. James G. Apple

By: James G. Apple, Editor-in-Chief, International Judicial Monitor

The United States of America was founded largely through the activities and influence of lawyers. The Declaration of Independence was written by a lawyer (Thomas Jefferson). The Constitution of the United States is largely worded the way it is by the leadership of a lawyer (James Madison). The adoption of the Constitution by the thirteen colonies that made up the membership of the United States in the last part of the 18th Century was obtained by the efforts of three lawyers (Alexander Hamilton, James Madison and John Jay). Eight of the first ten Presidents of the United States were lawyers. Of a total of 44 U.S. Presidents, 24 have been lawyers.

These statistics are cited only to demonstrate the great influence that law and lawyers have had on the development of the United States. The judicial branch has been especially affected by the activities of so many lawyers, because the U.S. judiciary, state and federal, from the beginning has been made up exclusively of lawyers The U.S. is a legal nation. Its heritage and culture to a great extent rest on the pillars of law and lawyers and judges and courts.

Alexis De Tocqueville, in his lengthy commentary about the U.S., Democracy in America, published in the middle of the 19th Century, observed about this legal phenomenon:

The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrated beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.

What is the harm to the judiciary that is stated in the title of this essay?

First and most prominently, a political situation has developed that is affecting adversely the Supreme Court of the United States. A crisis was created with the death of one of the Supreme Court justices, Antonin Scalia, in February, 2016. The process of selecting a person to fill the vacancy created by the death of Justice Scalia began with the nomination of a successor by the President of the United States. This action is supposed to be followed by Senate consideration of the nominee, and vote of approval or disapproval through first, hearings before the Senate Judiciary Committee, and then, assuming approval by a majority of that Committee, a vote of approval or disapproval by the entire Senate. This process is essentially a constitutional mandate.

That process is now being ignored by the Senate. The President has nominated a highly qualified candidate for the vacancy on the Supreme Court. However because of the efforts of a small coterie of Senators who want


to postpone the nomination for political reasons, hearings are not and will not be conducted on the President’s nomination.

The result of this state of affairs is that the Supreme Court of the United States cannot do the job mandated by the U.S. Constitution and statutes in its role as an appellate court. The Supreme Court has been crippled in its ability to perform its assigned tasks. Having only eight justices available to hear and decide cases does not provide the degree of judicial wisdom that is the objective of the statutes of the United States in setting the number of justices to be nine. This situation also creates the spectacle of having for some cases an evenly divided court (4-4 decisions). The consequences of this state of affairs are that tie votes result in the lower court’s judgment being affirmed – it is as if there were no appeal to the Supreme Court. This consequence has occurred more than once since the vacancy was created this past February.

The second reason for alarm and concern about the U.S. court system is similar to the first one – the same coterie of senators who are blocking consideration of the nomination to fill the Supreme Court vacancy are also obstructing the filling of vacancies in the federal appellate and trial courts.

The total number of authorized federal judgeships for both trial and appellate courts is 858. There are currently 89 vacancies among those authorized judgeships, almost 10% of the federal judiciary. There are pending 58 nominations to be acted up by the Senate. There is little prospect of having hearings on those nominations. The effects of this obstruction are long delays in processing and hearing cases in the courts of appeal and trial courts, many of which involve important, serious questions of constitutional and statutory law. This situation is developing into a serious crisis. Judges and courts are not able to do their jobs because of the obstructions of the Senators in conducting approval hearings. Large back-logs of cases adversely affect the efficiency of the courts, and create the probability of injustice in the cases that are heard after long waits.

The third cause for alarm is in the state courts, where judges in many states are elected, most in non-partisan elections. Judges in those states have to stand for election, which requires money. Many judicial candidates receive campaign finance funds from lawyers and corporations. Groups of citizens with a political agenda are taking two kinds of action which amounts to attacks on judges. The first is they raise funds for particular judicial candidates whose political views are similar or the same as their own. No concern is given for judicial qualifications; the concern is for the nature of the judge’s political views.

The second kind of action  that is causing alarm is that politically motivated citizens actively and loudly oppose the judicial candidates whose political views are adverse to their own.In short, these persons have a political litmus test which they administer to candidates in judicial elections. The aim is to elect judges who will decide cases in the manner that conforms to their political beliefs, which is a clear impingement on the independence of the judiciary, a pillar on which the U.S. legal system and the U.S. judiciary have long rested.

The ultimate and probable outcome of these attacks on judges and courts is the possibility of complete corruption of the judiciary in both federal and state courts. They are, or should be, viewed as unwelcome intrusions on the way the people of the United States have conducted their public business for over 220 years. They constitute a threat to the culture and heritage of America, so influenced by law and lawyers and judges and courts as observed by Alexis de Tocquevillle over 160 years ago.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2016 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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