The month in a nutshell: politicians debate how to choose judges, judges debate how to choose politicians, and the Supreme Court’s opposition to courtroom cameras becomes increasingly hard to justify
The intersection of politics and the law dominated court news in October, as debates over judicial selection raged at both the state and federal level. In North Carolina, the ongoing battles between the governor and legislature over judicial selection methods culminated in a legislative veto override, a cancellation of judicial elections for 2018, and current proposals to limit all judicial terms to only two years. This seems a transparent and clumsy effort to give the Republican-dominated legislature a chance to heavily influence the state judiciary, and there will surely be more wrangling in the coming weeks. Meanwhile, in California the governor signed a bill that would limit the designations a judicial candidate could use on the ballot, preventing candidates from running as a “Child Molestation Prosecutor,” for example. It’s a bandage on a much deeper problem infecting judicial elections in that state, but it was a bandage nonetheless. At the federal level, the President continued to nominate people to the bench, and the Senate is slowly processing those nominations, with one nomination finally advancing for a seat that has been vacant for twelve years.
However, judges also turned the tables last month, acting and opining on the selection of legislators and other politicians. In Australia, the High Court had to determine whether seven individuals holding dual citizenship were eligible to serve in the national legislature. In Kenya, the Supreme Court felt the fallout of last month’s decision to re-run the presidential election: Justices were repeatedly threatened, and only two were able to appear for an emergency hearing to postpone the election in late October. On a less serious note, a former federal judge in Montana announced plans for a Senate run, again suggesting an open doorway between the branches of government.
As its October 2017 Term began, the U.S. Supreme Court maintained its longstanding opposition to courtroom cameras, even dispatching Justice Breyer to argue against courtroom cameras in a television interview on CBS. This moment of terrific irony may have been lost on the court, but it highlighted the increasing isolation of its “no broadcast” position among American courts. Indeed, during the same month, the D.C. Circuit permitted a live audio broadcast of a high-profile appeal, and state judges in Iowa and Illinois indicated their support for video broadcasts of trial and appellate proceedings. And even though Judge Posner’s latest book and interview offered disappointingly little in the way of substance on the courtroom cameras issue, the simple fact that it was included among his recommendations has raised the profile of the issue further. The Supreme Court may still hold out on courtroom broadcasts for a while, but the needle is unquestionably moving away from the Court’s current position.