California’s Chief Justice, Tani Cantil-Sakauye, announced yesterday that she had left the Republican Party and had re-registered without party affiliation. She explained that her decision had been spurred by the confirmation of Brett Kavanaugh to the U.S. Supreme Court.
“I’ve been thinking about it for some time,” Cantil-Sakauye said, noting that she had discussed her decision with her husband and friends. They told her, Cantil-Sakauye said, “you didn’t leave the party. The party left you.”
Chief Justice Cantil-Sakauye is, of course, entitled to do whatever she wishes with her party affiliation, and she joins many prominent former Republicans who have left the party since the election of Donald Trump. There is nothing in the least bit wrong with her personal decision. But then she dropped this little nugget:
“I felt compelled to make a choice now. It better suits what I do and how I approach issues.”
The Chief Justice could have simply stated that she had changed parties as a personal matter, and that no party influenced her decisions on the cases that came before her. Now she has made her political beliefs an explicit part of her job description. I do not want to suggest at all that judges are oblivious to politics, or even that political considerations do not affect judicial decisions. But to place one’s own party affiliation at the core of “what [one] do[es] and how [one] approach[es] issues” is singularly unhelpful for building confidence in the judiciary.
Earlier this week, the Supreme Court denied certiorari in Gee v. Planned Parenthood, a case involving the ability of Medicare recipients to challenge a Louisiana law regulating payments to providers of certain services. While not specifically about abortion, the case certainly was determined in the shadow of the national abortion debate.
At least four Justices are needed for the Supreme Court to take up a case, but here only three of nine wanted to take it: Thomas, Alito, and Gorsuch. In an uncommon turn, Justice Thomas penned a dissent from the denial of certiorari, critiquing his colleagues for shirking their responsibility to decide cases that are or may be politically controversial.
Many people have weighed in on the Court’s decision and Justice Thomas’s dissent, but my colleague Lawrence Friedman has a particularly thoughtful and sensible take. Read the whole thing.
President Andres Manuel Lopez Obrador of Mexico lashed out against the country’s judiciary late last week, after Mexico’s Supreme Court suspended an austerity law that would have slashed the pay of many public employees.
Obrador, who has been in office for only two weeks, cut his own pay to less than half of his predecessor’s, and pushed through a law stipulating that no public sector employee could make more than the President himself. The Supreme Court suspended the law pending further review.
Obrador subsequently offered the following critique:
“I have no doubt that they’re the best paid public servants in the world,” the 65-year-old told a regular morning news conference on Tuesday, repeating that Mexico’s judges earn 600,000 pesos ($29,619) a month. Last week, before the court ruling, he described such a salary as tantamount to “corruption” in Mexico.
“With all due respect, only Donald Trump earns more than the president of the supreme court,” he added.
That, of course, has no basis in fact. But we’re talking about politics here, so what does that matter?
The court has accused Obrador of trying to undermine judicial independence. He’s not the only one these days.
Back in January of this year, Chief Justice John Roberts appointed a Workplace Conduct Working Group in response to several public allegations of workplace harassment within the court system. The Working Group made its recommendations in June. Now, the court system had followed up on one of the most significant recommendations by appointing a Judicial Integrity Officer: Jill Langley, formerly the Director of Workplace Relations for the Tenth Circuit.
According to the press release:
One of Langley’s first responsibilities will be to set up a new office that will serve as an independent source of information and referral. This will include answering individuals’ questions, providing guidance on conflict resolution, mediation, and formal complaint options.
The new Judicial Integrity Office also will track and monitor data and any recurring workplace issues to identify trends and conduct systemic analyses and reviews. In addition, Langley will provide training throughout the Judiciary and serve as a resource for workplace conduct staff throughout the court system, including coordination with the Ninth Circuit’s director of workplace relations, the D.C. Circuit’s workplace relations coordinators, and other similar positions in the courts.
Responding to President Trump’s characterization of a federal district judge who had ruled against the administration’s asylum policy as “an Obama judge,” Chief Justice John Roberts issued a statement rejecting the notion entirely.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
In a tweet, the President later responded, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The situation is a bit more nuanced than either side’s statements suggest, of course. The Chief Justice is correct that the federal judiciary is composed of extraordinary individuals who try to do their best, irrespective of the parties or issues in a case. But each judge also cannot help but apply the law in a manner informed by personal experience and beliefs. It is far too crass for the President to assert that his legal setback was due to an “Obama judge,” but he is not entirely wrong that the judge in question might have viewed the issue differently than some of his peers on the district court bench.
Still, three cheers for the Chief Justice, trying to maintain the legitimacy of the judiciary in the face of ongoing populist attacks.
This blog has followed the story of Phillip Spiwack, a Chicago-area lawyer who legally changed his name in 2012 to Shannon O’Malley. The reason for the change: he was planning to run for judge in Cook County, and recognized the stubborn reality that having an Irish woman’s name would be a valuable commodity at the polls.
Spiwack lost his first race in 2010 while using his original name. The next year, the DePaul Law Review published a study showing that Cook County judicial candidates with Irish and female names tended to have an advantage in judicial elections. Spiwack changed his name to Shannon O’Malley shortly thereafter, and then deliberately sat out judicial races for the next several cycles to circumvent a state law requiring candidates who undergo a name change within three years of an election to disclose their old names on the ballot.
The plan worked. O’Malley won his election last week, even though he refused to submit his qualifications to any local bar associations and therefore did not receive any bar recommendations.
O’Malley may or may not prove to be a good judge. But this whole episode speaks poorly of the low-information judicial voters in Chicago.
Arizona’s constitution requires that counties with a population over 250,000 must select their superior court judges using a merit selection model: judges are appointed by the governor based upon recommendations from a nonpartisan nominating commission, and then subject to periodic retention elections. Smaller counties, by contrast, typically elect their judges in contested elections.
But citizens in these smaller population counties may opt into the merit selection process by approving the change during a general election. And that is exactly what Coconino County voters did last week. It marks the first time that a rural Arizona county has chosen merit selection over the standard, party-affiliated election system. Coconino County Judge Dan Slayton provides more detail on the change at the IAALS Blog.
I applaud the move!