The Courts and Congress Index: Measuring the relationship between the two branches

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Tuesday, June 4, 2024

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Although two separate branches of the federal government, Congress and the judiciary are bound together to promote the fair and effective administration of justice. Congress controls federal court jurisdiction within the Constitution’s framework, it creates the institutions of the judiciary, determines its budget, sets judges’ salaries, and the Senate decides whether to approve presidential nominations to life-tenured judgeships. The courts interpret the statutes that Congress enacts, and occasionally must determine if the statutes are consistent with the Constitution.

The Katzmann Initiative on Improving Interbranch Relations and Government presents the Courts and Congress Index to feature key aspects of the branches’ relationship and how they have changed over time.

The Index is a work in progress and will be updated with new data periodically. Data come from data sets maintained by nonresident senior fellow Russell Wheeler and supplemented by other sources, including the Federal Judicial Center’s “Biographical Directory of Article III Federal Judges, 1789-Present“, nominations data from the Congressional Record and, data from maintained by the Administrative Office of the U.S. Courts, and other sources noted.

Court funding

Consistent with republican government, Congress determines the funds available for spending by almost all government agencies, including the courts. Until 1939, the Department of Justice determined the federal courts’ funding level to seek from Congress, and administered the funds that Congress provided. The 1939 statute that transferred that authority to the judicial branch vindicated the principles of separation of powers and an independent judicial branch.

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Judicial salaries

Congress determines judges’ salaries, subject only to the Constitutional mandate that it may not reduce the salaries of judges appointed to judgeships in which they serve during what the Constitution calls “good Behaviour”—essentially for life. Since the early days of the Republic, judges have appealed to Congress for what they see as reasonable salary adjustments, noting (usually correctly) that they could earn more as practicing lawyers. Further confounding the salary picture, during most of the 20th century and into the 21st, Congress linked its salaries to those of federal judges.

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Federal judicial nominations and confirmations

The Constitution provides a three-step process for filling vacancies in federal judgeships that carry good behavior tenure: the president’s submission (nomination) of a candidate to the Senate; the Senate’s approval (confirmation) of the nomination; the president’s appointment of the confirmed nominee. Although the judicial branch has no formal role in this process, it is obviously affected by it. Failure to fill vacancies promptly imposes extra work on sitting judges and limits litigants’ access to the courts. Moreover, contentious, drawn-out nomination and confirmation battles may lead some would-be judges to decline consideration.

During most of the 20th century the process has been largely routine and non-controversial. Although it took the Senate six months to confirm President Wilson’s Supreme Court nomination of Louis Brandeis in 1916, amid charges Brandeis, as a Progressive, was unfit to serve (mixed in with a heavy dose of antisemitism), five years later it took the Senate but a few hours to confirm President Harding’s 1921 nomination of former president Taft to be chief justice.

Speedy and controversy-free confirmations at all levels were the norm until late in the 20th century. Today, the process is slower and contested, although Senate bans on filibustering judicial nominations in 2013 for lower court nominees (the subject of these figures) and 2017 for the Supreme Court have somewhat ameliorated the path to confirmation.

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