The Rule of the Courts

M. Akram Faizer

All federal judicial candidates require nomination by the sitting U.S. President and confirmation by the U.S. Senate to assume office. 29 To protect judicial independence, the Constitution grants all federal judges lifetime tenure in office after confirmation by the U.S. Senate. 30 The confirmation process has always been political and U.S. presidents typically see their appointments to the federal courts, especially the U.S. Supreme Court, as a key component to their historical legacy. This is especially so since the U.S. Supreme Court has grown in prestige as comparted to the political branches. To illustrate, the first U.S. Chief Justice, John Jay, took a leave of absence from the Court to negotiate a peace treaty with the United Kingdom, resigned from the Court in 1795 to become New York’s governor and, in 1800, declined the position of Chief Justice after being nominated by then-President John Adams and confirmed by the U.S. Senate in 1800. 31 Today, by contrast, every elected and appointed official in the country, with the exception of the President, would gladly resign their position to accept a U.S. Supreme Court vacancy. 32 Problematically, as the Court has grown in importance, the judicial appointment process has become so political that judicial candidates are vetted more for ideological purity and demographic characteristics than jurisprudential competence. 33 The problem stems from President Franklin Roosevelt’s response to the Supreme Court’s early opposition to his New Deal that led it to invalidate key pieces of New Deal legislation during his first term in office. Upon winning a landslide reelection in 1936, he chose 28 U.S. Const. art. III; see also Admin. Off. of the U.S. Cts., Understanding the Federal Courts 1 (2025), https://www.uscourts.gov/sites/default/files/understanding-federal courts.pdf. 29 U.S. Const. art. II, § 2, cl. 2. 30 Id. 31 Jay Declines a Second Appointment as Chief Justice [Editorial Note],” Founders Online, National Archives, https://founders.archives.gov/documents/Jay/01-07-02-0072 32 E.g. Justice Hugo Black resigned from the U.S. Senate in 1937 to accept a Supreme Court vacancy. 33 Charles M. Cameron, Jonathan P. Kastellec & Lauren A. Mattioli, Presidential Selection of Supreme Court Nominees: The Characteristics Approach , 14 Q.J. Pol. Sci. 439 (2019).

107