Donald Trump is nowhere mentioned in Chief Justice John Roberts’ latest year-end report on the federal judiciary. But if you read between the lines, the reality that the next president will soon be filling a bevy of court vacancies across the country could very well have been weighing on the chief’s mind.
“While the Supreme Court is often the focus of public attention,” Roberts wrote in the report published Saturday, which said nothing about the empty seat on his own court, “our system of justice depends fundamentally on the skill, hard work, and dedication of those outside the limelight.”
There are no fireworks in the traditional New Year’s Eve report — Roberts’ 12th since he was appointed to lead the Supreme Court and the nation’s federal courts. No word on Merrick Garland, either — the judge President Barack Obama nominated to fill the vacant seat of the late Justice Antonin Scalia, who died in February.
Instead, Roberts limits his report to praising the hundreds of lower court judges already serving ― with no acknowledgment that there are 84 vacancies for these judgeships nationwide, 44 of them with pending Obama nominees. Many of those names even made it out of committee in the Senate but never got a vote, in large part due to the same tactics Senate Majority Leader Mitch McConnell (R-Ky.) deployed to halt the Garland nomination.
None of this made the chief’s report, which was otherwise filled with historical tidbits about George Washington’s nomination of the first 13 federal judges and a detailed look at the everyday workload of those keeping the wheels of justice turning today.
“Because they work alone, district judges do not have the benefit of collegial decision-making or the comfort of shared consensus,” Roberts wrote. “And because of the press of their dockets, they face far more severe time and resource constraints than their appellate brethren.”
One advocacy organization, Fix the Court, said Roberts should’ve gotten a little more real about how the political process has hamstrung the courts.
“With the Senate now famous for its inaction in filling federal court vacancies, Roberts should use the power of his office to find creative ways to solve the impasse, as writing a report with only the most oblique references to such problems does not fix anything,” said Gabe Roth, the group’s executive director.
In previous years, Roberts’ reports had more of a political edge. In his second report, Roberts warned of a “constitutional crisis” in the courts if Congress didn’t get its act together and do something to increase judicial salaries, which had remained stagnant for years.
“Congress has a constitutional responsibility to do so,” he wrote in his 2006 report, which also predicted that failure to act by lawmakers “will inevitably result in a decline in the quality of persons willing to accept a lifetime appointment as a federal judge.”
District judges make a difference every day, and leave a lasting legacy, by making our society more fair and just. Chief Justice John Roberts
In 2012, just as Obama was getting ready to start his second term, Roberts directly called on him and Congress “to act diligently in nominating and confirming highly qualified candidates to fill” judicial vacancies.
With Trump’s swearing-in — by Roberts no less — now 20 days away, the president-elect is poised to inherit all of the judicial seats Obama couldn’t fill. And with the Senate firmly in Republican hands, it looks like Roberts won’t need to do a lot of imploring in future reports.
In that sense, maybe the chief’s 2016 year-end message could be read not as an airing of grievances but as an invitation for those who might be pondering getting a Trump nod in the next four years.
“You might be asking at this point why any lawyer would want a job that requires long hours, exacting skill, and intense devotion — while promising high stress, solitary confinement, and guaranteed criticism,” Roberts wrote. “There are many easier and more lucrative ways for a good lawyer to earn a living.”
Which he followed with this kicker of sorts: “The answer lies in the rewards of public service. District judges make a difference every day, and leave a lasting legacy, by making our society more fair and just.”