« Saturday Music Post - Girl from the North Country | Main | Sometimes Judges Apologize; Mostly, they do not »
Monday, December 30, 2024
Jimmy Carter and the courts
On the death of former President Jimmy Carter, some thoughts on his judicial legacy.
• Carter famously did not appoint a SCOTUS Justice. He is the only 20th-century President and the only President since Andrew Johnson not to get an appointment (the others with none are William Henry Harrison and Zachary Taylor). I use Carter in Fed Courts to illustrate the randomness of appointments in our system--other Presidents who served one term (or less) appointed at least one Justice and in some cases many more.
Carter was a victim of bad timing with respect to the Court. Nixon/Ford made five appointments in eight years from 1969-77, replacing the old-and-long-serving liberals (Warren, Black, Douglas, as well as Harlan) with younger members who obviously were not ready to resign. In 1980 (the final year Carter could have made an appointment), Thurgood Marshall (72) had been on the Court for 13 years; Byron White (63) for 18 years; and William Brennan (74) for 24 years.* (Potter Stewart was 65 and had served for 22 years, but he was a Republican and not inclined to give a Democrat the seat--he retired in 1981, allowing Reagan to appoint Sandra Day O'Connor). Perhaps if Abe Fortas had not been forced to resign he would have been ready to resign at age 70 after 15 years. Or, for a deeper counter-factual, perhaps if Arthur Goldberg had not resigned in favor of Fortas, he would have been ready to resign at age 72 after 18 years (and perhaps a decade as Chief). The point is that from 1977-81, no Justice happened to die or get sick and no one was of the age, tenure, or inclination to retire, strategically or otherwise. Carter was stuck.
[*] When Josh Barro argued that Justice Sotomayor should resign to give Biden the appointment--an argument I criticized--he compared Marshall's failure to resign in 1980, which lead to to Justice Thomas. Yet Brennan was two years older, had served almost twice as long, and also did not last the 13 years until the next Democratic President.
• Carter appointed an extraordinary number of lower-court judges, thanks in part to a 1978 law that created 152 new judgeships, which he filled during the final half of his term. Carter was the first president to meaningfully diversify the federal bench in terms of gender and race, filling judgeships with leaders of the Civil Rights and women's rights movements. I clerked for one of those judges--James T. Giles, who served for almost 20 years (1979-2008) on the Eastern District of Pennsylvania, including six years as Chief. Although not part of the movement, Giles worked at the EEOC and the NLRB right out of law school prior to private practice and taking the bench at the age of 36.
• My 2021 study of Academic Feeder Judges found that Carter appointees led the way in producing academics. Of the top 102 lower-court judges, 26 were Carter appointees; of the top 51 district judges, 18 were Carter appointees.
Posted by Howard Wasserman on December 30, 2024 at 01:54 AM in Howard Wasserman, Law and Politics | Permalink
Comments
The comments to this entry are closed.