The Federal Courts

Chose any of the following questions to answer:
1.) Justice Ruth Bader Ginsburg died from complications of pancreatic cancer on September 18, 2020, at age 87, just six weeks before the presidential election. Despite having argued, in 2016, that Justice Antonin Scalia’s seat should be held open, for approximately eleven months, the Republican Senate Majority Leader, Mitch McConnell, vowed to see the president’s nominee confirmed. On September 26, 2020, Trump nominated Amy Coney Barrett to succeed Ruth Bader Ginsburg on the United States Supreme Court, and she was swiftly confirmed before the November elections. Putting aside the question of hypocrisy on both sides of the partisan aisle, what of the argument that, in an election year, an open seat should be kept open until after the election and the next officials are seated. Should this be done, even though the president and the Senate have the constitutional authority to nominate and confirm a justice?

2.) The past two decades have seen increasing partisan warfare in the Senate over the federal judiciary, as partisan polarization has grown in Congress and among American voters. Since at least the early 1990s, Republican and Democratic senators have held up presidential nominations to lower court posts made by presidents of the opposite party.
This low-level warfare, and associated battles over use of the judicial filibuster, had already led to some media debate about the Senate’s constitutional responsibility to provide “advice and consent” in the appointment process. The debate returned with more recent and highly publicized battles over presidential Supreme Court nominations.
What do you think “advice and consent” means, or should mean? Do appointees deserve an up-or-down vote on the Senate floor, regardless of their actual or perceived ideological or partisan orientation, with only strictly personal or professional conduct considered legitimate issues for further inquiry? Or should senators feel free to use whatever procedural means are at their disposal, including delaying the process, to influence the ideological composition of the judiciary?

3.) Should federal judges, whether at the Supreme Court or a lower level, have life tenure? As these data from the Federal Judicial Center—the federal judicial branch’s research and education arm—show, the average time that federal judges have spent on the bench has grown longer over time. The trend, it suggests, appears to reflect the age that judges began serving, along with societal changes, including increasing life expectancy. Also, fewer judges have resigned from the bench over time, the report notes, suggesting that this is likely a consequence of the increased prestige of federal judgeships.

www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges

Do you think, given this increase in the amount of time that judges serve, that term limits for federal justices might be a good thing? What about having federal judges run in periodic retention elections, a few years after an initial appointment, in the manner of many state judges?
When you consider the political and social crises that the United States has experienced over time, however, might ensuring judicial independence through life tenure be more important?

4.) What constitutes an appropriate role for the judiciary? Some argue that courts have become too powerful and that judges legislate from the bench. What does it mean for a court to be activist? What does it mean for a court to show judicial restraint?
Although conservatives have long complained about the activism of liberal justices and judges, in recent years, liberals have pointed out that conservative judges and justices are now more likely to overturn precedents and question the power of elected institutions of government. Conservatives counter by saying they are just returning to an older precedent that had been ignored by liberals.
If both liberals and conservatives engage in judicial activism, is the concept inherently a bad thing?

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