Full and Functional: A Vision for the Federal Judiciary
In February 2016, Justice Antonin Scalia died, leaving a vacancy on the Supreme Court that remains empty to this day. President Obama quickly nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals to fill the vacancy, but the Senate refused to act, holding neither a hearing nor a vote on the nomination.
In its failure to act, the Senate more than doubled the previously held record for the length of time between a nomination to the Supreme Court and a vote on the nominee. What’s more, currently, there are 118 unfilled judicial seats in the federal courts. These ongoing vacancies have a detrimental impact on the functionality of our court system and on our nation’s pursuit of justice.
We read in this week’s Torah portion, Parashat Yitro, "And they shall judge the people at all seasons” (Exodus 18:22). In this passage, Jethro (Yitro) watches Moses, his son-in-law, struggle as the sole arbiter of disputes between the wandering Israelites. Jethro reminds Moses that he cannot do the entire job alone. Instead, Moses must focus on the most pressing issues. To help ease the burden, Jethro recommends that Moses “choose out of the entire nation men of substance, God fearers, men of truth, who hate monetary gain” to act as judges for the people’s day-to-day legal affairs (18:21). “If you do this thing,” Jethro says, “and the Lord commands you, you will be able to survive, and also, all these people will come upon their place in peace” (18:23).
This wisdom from Jethro remains as relevant today as it was in biblical times. The responsibility to mete out justice cannot be done without a full and functional Supreme Court and federal judiciary. With fewer than 40 cases on the docket this term, the Supreme Court currently is tackling its lightest workload in more than 70 years. When the eight justices do agree to hear a case, the ongoing vacancy makes possible a 4-4 split. In such cases, the lower court’s decision stands, but does not set precedent for the rest of the country. Such gridlock allows for a patchwork of decisions across the nation and fails to serve the ultimate interest of the full pursuit of justice.
The failure to act on Judge Merrick Garland’s nomination and the prolonged Supreme Court vacancy that resulted reflect poorly on the Senate. Americans seeking justice, advocates, activists, jurists, and historians will continue to debate the impact of the politicization of the Supreme Court for years to come. At this moment, however, the Senate again faces its constitutional responsibility to provide “advice and consent” on the nomination of Judge Neil Gorsuch, recently nominated by President Trump to the Supreme Court. As pressing as the need to have a full Court is the need to ensure that whoever joins the highest court in the land will defend the Constitution, promote equal rights and opportunity for all, and approach legal interpretation with the reverence and care it deserves.
Likewise, Jethro is clear with Moses about the goals of the judicial system in their day, and the qualities necessary to sit in judgment of others. He says, “choose out of the entire nation men of substance, God fearers, men of truth…if you do this thing…all these people will come upon their place in peace.” Indeed, to issue fair and equitable judgments, a system must be both full and functional, with its functionality resting not solely on the number of justices, but also on their inherent qualities.
Over the next several weeks, it will be the responsibility of senators and all Americans to learn more about Judge Gorsuch’s record and views. After all, like all Supreme Court Justices, he is being considered for a lifetime appointment to the federal bench. Inspired by Jethro’s words, the Reform Jewish community takes its responsibility seriously, and we will consider Judge Gorsuch’s record on important issues, including civil rights, separation of church and state, religious freedom, women's rights, LGBTQ equality, and more. We look forward to hearing from Judge Gorsuch directly during his confirmation hearing.
The judges and justices who interpret and uphold the law are entrusted with great responsibility. As citizens, our responsibility to partner with our senators as they consider these nominees is equally great. As Jethro knew and Moses learned, the burden is eased when we share it together.
Engage in this process by submitting questions for Senate Judiciary Committee members to ask Judge Gorsuch during the hearing.