New York is not the only state suffering though high-profile dysfunction with its judicial selection process. This week, the South Carolina legislature postponed its scheduled judicial elections, and several legislators as well as the governor called for changes to the state’s selection process.
South Carolina is one of only two states that chooses its judges by legislative election. Proponents of this approach have argued that it keeps judges more closely aligned with the values and sensibilities of the people. Opponents argue that it politicizes judicial selection (in that judicial candidates must win over legislators in order to secure their votes) and makes the judiciary subservient to the legislature. Indeed, many states moved to direct judicial elections in the nineteenth century because of concerns about legislative interference with the judicial process. Continue reading “South Carolina faces internal dissent over its judicial selection process”
Last week, the progressives in New York’s General Assembly effectively killed the nomination of Justice Hector LaSalle to be the Chief Justice of the New York Court of Appeals. As I have documented previously, the opposition had nothing to do with LaSalle’s qualifications or experience, but rather a ginned-up power play over Governor Kathy Hochul. In doing so, they prevented LaSalle from becoming the first Hispanic Chief Judge of the high court.
Identity sure seems to matter to progressives — until it doesn’t.
More broadly, Albany’s progressives are joyfully gutting a coequal branch of government in order to engage in an intramural fight with the governor. The Court of Appeals, in need of a Chief Justice for months, remains without an administrative leader. And the entire state court system has been deprived of leadership with respect to their everyday work.
All New Yorkers should be outraged on this assault on their judiciary. The consequences will become evident soon enough.
The full statement from the Court, with the Marshal’s report and an additional statement from Michael Chertoff (as an independent analyst for the Court), can be found here. The key takeaway: “the [Marshal’s] team has to date been unable to identify a person responsible [for the leak] by a preponderance of the evidence.”
Preponderance of the evidence is, of course, the lowest standard of proof, equivalent to a likelihood of just over 50 percent. The failure of the investigation to identify any specific person under the preponderance standard is a clear signal that the Court does not ever expect to find the perpetrator.
This meek result is almost as stunning as the leak itself. And it carries several important consequences:
- The Supreme Court’s reputation takes another hit. Leave aside the cynical partisan attacks based on one or two case outcomes. The Court itself has too many self-inflicted wounds in recent years: its refusal to adopt a Code of Ethics, its refusal to broadcast video of its arguments, and so on. Increasingly, the Supreme Court looks like a 19th century institution that has been uncomfortably transported to the 21st century. The failure to find the source of the leak makes the entire institution look inept.
- Other court systems will suffer reputational fallout as well. Most people do not carefully distinguish between the Supreme Court and other courts or court systems in their daily lives. Just as a strong reputation for the apex court will have benefits for other courts downstream, a reputational blow to the nation’s highest court will have the public thinking a bit more dismally about court systems in their own localities as well.
- The Supreme Court will necessarily be a less open place to work. The Marshal’s report recommended–and former Secretary Chertoff endorsed–a number of measures to assure that a leak like this does not happen again. Many of these recommendations involving restricting access to draft opinions and other key documents, and instituting greater confidentiality measures. Fewer people will see drafts, and fewer opportunities will be available for reflection. There will still be prestige in clerking or otherwise staffing at the Supreme Court, but one has to wonder whether some qualified candidates will pass on the opportunity if it means giving up one’s cell phone when walking into the building and knowing that someone is always looking over your shoulder.
- The Court will have to contend with an internal culture of distrust, at least for the foreseeable future. Just as potential law clerks and staff will bristle at being watched more closely, the Justices themselves will ask whether it’s worth bringing in so many unproven people for a year or two. The increased security will also necessarily make it harder for Justices to hammer out issues among themselves, whether directly or through law clerks as intermediaries.
- The Court is likely to become even more resistant to sensible transparency proposals. As this blog has routinely documented, both legislators and the general public have put forward a variety of proposals to make the Supreme Court’s work more transparent and accessible. These proposals include better recusal practices and livestreaming oral arguments. But now that the Court is feeling on the defensive, it seems highly unlikely that it will voluntarily accede to transparency measures. This doesn’t mean that transparency measures are not coming eventually–I am confident that they are–but only that the Court will try to delay introducing them until it feels overwhelming pressure to do so.
The legislative proposal is still in its early stages, and would need voter approval in 2024. It would end contested elections of judges and create a mechanism for formally allowing all judges to be appointed by the Governor. All judges would then face periodic retention elections, during which they would run unopposed and voters would choose to retain them for another term.
The proposal is far less radical as it seems. As this article points out, almost all state judges are already appointed to fill vacancies that occur between election cycles. Indeed, almost no judges actually ascend to the bench in the first instance from a direct election. Removing the requirement of contested elections is therefore as much a housekeeping measure as anything else.
It’s also an excellent idea. Contested judicial elections are in fact almost never contested, and when they are they are subject to deep politicization. Retention elections would continue to provide accountability to the voters, especially if it is paired with a robust judicial performance evaluation program.
Let’s see how this plays out. It is a hard thing for voters to give up their franchise, even in elections where there is rarely a decision to be made. But it is a development that bears watching.
New Jersey’s court system currently has 65 judicial vacancies, leading one lawmaker to propose raising the state’s mandatory retirement age for judges in order keep exising jurists on the bench.
Like many states, New Jersey currently requires its judges to retire at age 70. But a mandatory retirement system presumes that the state will quickly fill judicial seats as they become vacant. In fact, both Governor Phil Murphy and the state legislature have been slow to act on existing vacancies, creating a crisis so significant that nearly eighty retired judges have been temporarily called back into service to help clear the caseload backlog.
State Senator Shirley Turner is proposing raising the mandatory judicial retirement age to 75. It is a stopgap measure, to be sure. The only way to solve the crisis is for the other branches of state government to take their nomination and confirmation responsibilities seriously.
The situation in New Jersey perfectly illustrates the resource challenges that court systems must navigate in the 2020s. The heightened politicization of every aspect of American life has led the executive and legislative branches to treat each judicial vacancy as an zero-sum partisan event. (See the current kerfuffle in New York.) Meanwhile the courts, unable to secure the human resources they need to address their dockets and unable to control the flow of cases into the system, have to resort to recalls and other strategies to keep up with their workload. No wonder public confidence in every branch of government is in decline.
The Florida Bar has sent a report to the state supreme court with suggestions for improving public access to legal services. According to the Bar’s press release, the suggestions include the creation of a permanent committee to address issues concerning self-represented litigants, increasing legal aid funding, expanding pro bono services, and lowering bars for legal interns to help represent clients.
Each of these suggestions, and many others like them, recognize the crisis of access to justice, which is especially acute in state court systems. And all of them are good ideas. But unsurprisingly, the suggestions are also deliberately crafted to preserve the special role of attorneys as gatekeepers to the legal system. Indeed, the press release itself mentions that last year the Bar pushed back against a much broader set of proposals, coming from the court system itself, which would have (among other things) tested non-lawyer ownership of firms and sought an expanded role for paralegals.
So this a turf war of sorts, but a constructive one. Access to justice is a real problem. Courts must recognize that attorneys will not readily cede their special role as intermediaries between the courts and the public, and attorneys must recognize that the public’s need for affordable and reliable court services far exceeds the ability of the bar to provide it. Much like the field of health care, where the model that predominated for decades is being upended to fit the needs of a modern society, so too the field of legal services is being upended. My sense is that changes are coming quickly, so it’s important that all stakeholders contribute to the conversation now.
The money will come from federal COVID “American Rescue Plan” funding, and will go toward technological improvements and efforts to ease access to court documents.
Justice Hector LaSalle’s nomination for Chief Justice of the New York Court of Appeals has received additional support from a wide range of sources, including a dozen former judges, former Governor David Paterson, and some members of the Republican minority in the New York General Assembly. LaSalle’s nomination is currently being held up by partisans and progressive activists in Governor Kathy Hochul’s own party.
If Justice LaSalle is not the man for the job, by all means let that be reflected in debate and a final vote. But to try to sink that debate before it begins, especially when his nomination followed a well-structured and established process, is strong-arm politics at its most cynical.
The resignation of New York’s Chief Justice Janet DeFiore a few months ago has given Governor Kathy Hochul an opportunity to appoint the new chief of the state’s Court of Appeals. But an ultra-progressive contingent in the state legislature is turning the appointment process into a circus wholly unbefitting the judiciary.
Under New York’s judicial selection procedures, Governor Hochul must choose from among the candidates recommended by the state’s Commission on Judicial Nomination. The Commission presented the governor with a list of seven candidates in late November, and she ultimately nominated Hector LaSalle, a longtime Justice on the state’s Appellate Division. That is when the trouble started. Progressive activists immediately rejected Justice LaSalle as one of three so-called “conservative” judges whose appointment would be “unacceptable.” LaSalle’s crime? “[F]requently dissenting from majority opinions [on the appellate division] that reversed criminal defendants’ convictions.”
At last count, the progressives have convinced at least 13 state legislators, including “Democratic Socialist” Jabari Brisport, to vote against LaSalle. This may be enough to kill the nomination.
Given LaSalle’s long and distinguished judicial career, including almost a decade on the Appellate Division bench (where he was appointed by Democratic Governor Andrew Cuomo), it is disgraceful to watch his nomination be undermined by the ugliest kind of partisan activism. All the more so because LaSalle comes with the highest recommendations from the New York State Trial Lawyers Association and the New York State Bar Association, two organziations that actually know what they are talking about.
But it gets even worse. Hochul herself does not appear to have chosen LaSalle because of his legal chops, but rather primarily because of his demographic identity. She is apparently set on appointing a Latino to the state’s highest court, and LaSalle was the only candidate on the seven-person slate that fit that bill. So the nomination will go forward to an ugly and uncertain vote, with everything centered on the judge’s ethnicity and activists’ wish lists, and absolutely nothing focused on his judicial skill, experience, temperament, or leadership ability.
What a shame.
The eleven justices of Mexico’s supreme court have elected Norma Lucia Piña as their new chief justice. Chief Justice Piña will be the first woman to lead the court in its history.
The 6-5 vote carried a fair bit of intrigue. Mexico’s President, Andrés Manuel López Obrador, had backed Justice Yasmín Esquivel for the position, and apparently had pressured the other judges to support her candidacy. But Justice Esquivel was also battling under allegations that she had plaigiarized her senior thesis while an undergraduate in the 1980s. Lopez Obrador subsequently demounced the result of the election, arguing that “the judicial branch has been kidnapped … has been eclipsed by money, by economic power.”
Piña stressed the importance of judicial independence in her first remarks as chief justice. It sounds like there will be some turbulent times ahead.