Pierce Butler: A Supreme Technician

Despite serving for more than sixteen years on the Supreme Court of the United States and authoring more than 300 opinions, Pierce Butler is one of the lesser-known Justices in American history. When his name is mentioned by constitutional scholars, it is usually to deride him for being one of the so-called Four Horsemen of the Apocalypse, a group of Justices that invalidated efforts by politicians, especially President Franklin Delano Roosevelt, to enact New Deal reforms. Scholars have characterized his role in the development of constitutional law as minimal, and he is the subject of only one full-length book, A Supreme Court Justice is Appointed, which focuses almost exclusively on his appointment to the Supreme Court rather than his background or contributions to the development of the law. Some scholars have gone even further by characterizing Butler\u27s tenure on the Court as a failure, and when he is mentioned, it is often on lists of the least successful Supreme Court Justices of all time. Butler was not one of the great Justices in the Court\u27s history, but he is deeply understudied, likely underestimated, and regrettably misunderstood

Keynote Address: Secret Agents: Using Law Clerks Effectively

Recent scholarship discusses the role of law clerks and their role in influencing the courts on which they work. This Keynote Address discusses the nuts and bolts of law clerks, including how they are selected, what role they play on various courts, and their potential opportunities for influence

Retaining Life Tenure: The Case for a Golden Parachute

The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers\u27 worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional. Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement

Are Senior Judges Unconstitutional

With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems to suggest that senior status represents a separate constitutional office, requiring reappointment, even though senior judges nominally retain judicial office under federal law. In the first scholarly article addressing the constitutionality of senior judges, the authors examine two general constitutional objections: (1) whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and (2) whether allowing judges to elect senior status, without a second intervening appointment, violates the Appointments Clause. They also examine whether two specific types of senior judges - the bureaucratic senior judge who performs only administrative duties and the itinerant senior judge who sits exclusively on courts outside his home district or circuit - violate the Constitution. The authors conclude that the current statute authorizing senior judges raises serious constitutional problems that should be addressed by Congress or the Judicial Conference of the United States. In that respect, they formulate a number of straightforward suggestions to repair senior status without having to sacrifice any of the considerable benefits that senior judges have conferred on the federal judiciary over the years

Navigating the New Politics of Judicial Appointments

This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber\u27s reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he proposes that the Senate get tough by standing up to the President and rejecting any nominee who does not prove to be moderate, or who fails to give satisfactory answers at the confirmation hearings. In this Review Essay, the authors note several flaws in Eisgruber\u27s proposals, many of which are applicable to other, similar reform proposals advanced by other scholars. First, Eisguber offers an incomplete diagnosis of the reasons behind the growing politicization of the appointments process, underestimating in particular the prominent role played by interest groups and the media in shaping the process. The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates. Second, drawing on a rich political science literature, the authors demonstrate why a get tough strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President. Like many other scholars in the area, Eisgruber fails to address the myriad tools available to Presidents to deal with Senate resistance. The basic and most powerful tool for Presidents is the strategic selection of Supreme Court nominees, especially those with excellent qualifications, which can make it difficult for Senators to delay or reject those nominees. In the face of an obstructionist Senate, Presidents can also draw upon their substantial institutional strength by going public and touting the qualifications and attributes of the nominee, by making or threatening a recess appointment, and by employing ordinary legislative techniques like logrolling strategies and credible veto threats. Strategic employment of these tools makes it more difficult for Senators of all parties to obstruct Supreme Court nominees and helps to explain why the vast majority of such nominees during the past century have been confirmed by the Senate