Imagine if the president, instead of giving a full State of the Union address, sent a note to Congress telling the legislative branch that life is good, all is okay, and Iet's catch up next year. Chief Justice John Roberts Jr. did something close to that last week in his annual report on the state of the judiciary, and it left some wishing for more.
Instead of a laundry list of needs and wishes from the judicial branch, as he and his predecessors have recited since the custom of writing the annual reports began in 1970, Roberts this time said...not very much. Apart from statistics about federal court caseloads and the like, Roberts' most substantive statement was this: "The courts are operating soundly, and the nation’s dedicated federal judges are conscientiously discharging their duties." He suggested that with the political branches occupied with a range of pressing issues, and economic hardship facing the population, the "public might welcome" such a positive, nondemanding report.
And so far, Roberts seems mainly to be right. But today there was some grumbling that Roberts' report represented a missed opportunity to shine the spotlight on the third branch of government. Roberts' predecessors -- most notably Warren Burger, who conceived the annual report idea--viewed it at least in part as an occasion to educate the public about the judicial branch.
In a statement, Senate Judiciary Committee chairman Patrick Leahy, (D-Vt.) said Roberts' report "rightly acknowledges" the work of the judges and staff who operate the federal courts. Without criticizing Roberts, however, Leahy went on to suggest that the work of the courts could be even better if the 120 vacancies in federal judgeships could be filled more rapidly. Leahy noted that Rehnquist, in some of his annual reports, had urged the Senate to confirm judicial nominees.
In a phone interview, Rep. Adam Schiff (D-Calif.), who heads the congressional caucus on the judicial branch, praised the chief justice for omitting a plea for judicial pay increases from his report last week. Earlier in his tenure, Roberts had used exclamation points and phrases like "constitutional crisis" to argue the cause for judicial salary increases, and his pleas fell on deaf ears. "Given the tough economic times, it was not the right time to spend a lot of time on that subject," said Schiff.
Still, said Schiff, "there were a couple of things that were worthy of mention that were not mentioned. That surprised me." Like Leahy, Schiff cited "the extraordinary number of vacancies and the big impact that has on caseloads." Schiff also said there had been two impeachment referrals of federal judges in the last year, and that it might have been "worth letting judges know through the chief justice that there are some problems, and the need for high ethical standards." In addition, noting today's shooting at a Las Vegas federal courthouse, Schiff said the issue of judicial security and courthouse improvements is worth highlighting.
University of Richmond law professor Carl Tobias, a frequent commentator on the federal judiciary, said today that Robert's report represented a "lost opportunity" to communicate with the public. Tobias agrees that now was not the time to press for a pay raise, but he added, "People comb over that report. It's his bully pulpit" for discussing judicial issues. "It would have been useful to jawbone the Senate to move the judicial nominations," Tobias asserted. "As the face of the federal judiciary, that is something he could speak to."