Politics and the Federal Courts

June 24, 1977

Report Outline
Debate Over Activism or Restraint
Changes in Role of Federal Courts
Ways to Cope with Court Overload
Special Focus

Debate Over Activism or Restraint

Likely Carter Impact on Nixon-Ford Legacy

President Carter has promised to choose the judges he wants appointed to the federal courts on the basis of “strict merit,” not partisan politics. It is easier said than done, as Carter discovered when he encountered strong Senate opposition to the establishment of commissions to evaluate nominations to the courts of appeal and district courts. He did manage, in an executive order signed Feb. 14, to set up panels to supply him with the names of the “best qualified” persons for the circuit courts of appeals. The order, however, did not apply to the far more numerous district court appointments.

Carter's pledge is unlikely to dampen the controversies over judicial philosophy that have surrounded the federal courts since they were established almost 200 years ago. Such controversies are inevitable in view of the power U.S. judges wield. Federal judges interpret the Constitution and the statutes, but the fact that they are appointed to the bench only if they win the approval of both the President and the Senate ensures that these jobs will be subjected to partisan and ideological considerations.

It is too early to determine the kind of men and women the President will appoint to the federal courts, but it is probable that he will choose a large number. There are about two dozen vacancies to be filled and there is a consensus that many more federal judges are needed. This need was also apparent during the Nixon-Ford presidency but the Democratic-controlled Congress was unwilling to act upon numerous proposals to create new federal judgeships. Now, with a Democrat as President, the House is expected to approve a bill which the Senate passed May 24 to create 113 new district and 35 new circuit court judgeships. While there are no vacancies on the Supreme Court, five of the nine justices are 68 or older.

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