Federal courts can operate through January 31, but no later

img_0207Yesterday, the Administrative Office of the U.S. Courts estimated that it can sustain funded operations through next Thursday, January 31. It further cautioned that “No further extensions [of operations] beyond Feb. 1 will be possible.”

Funds have dried up. Even the couch cushions have yielded their bounty. Can the other two branches finally bring the shutdown to an end?

West Virginia considers new legislation affecting the courts

The West Virginia legislature has been busy introducing new bills that would affect the state courts. One bill would add magistrate judges to the court system and give all state magistrates a salary increase. Another bill would require that the state supreme court hear all appeals as of right.

Neither of these ideas is new — the magistrate bill was introduced without success in previous years, and the state supreme court already hears all appeals by court rule. But the bills are still significant. The magistrate bill acknowledges the continued resource needs of the court system in a state with a growing population. And the appeals bill, while merely codifying an existing practice, represents a carefully considered tradeoff between imposing burdens on the supreme court and the cost of creating an intermediate appellate court. At minimum, these bills are a sign that the legislature is thinking meaningfully about the needs of the court system after years of chaos within the judicial branch.

The state of state judiciaries

It’s the time of year for State of the Judiciary addresses in many states, an opportunity for the Chief Justice of the state to provide the new state legislature with an update on the court system, including its strategic plans and ongoing resource needs. Several State of the Judiciary speeches have been reported in the news, allowing us to get a broad sense of what state courts are planning/hoping for in the coming year. More after the jump. Continue reading “The state of state judiciaries”

The argument for overhauling judicial selection in New York

Ross Barkan has a compelling article with an evergreen headline: It’s time to reform New York’s machine-controlled judicial system.

I would add as (recent) Exhibits A-G:

New York City faces few takers for interim judicial appointments

Judicial aspirants brown nose at Brooklyn Democratic fundraiser

Another voice against de facto party control over the New York courts

“Insurgent” judicial candidates in Brooklyn continue their fight against machine politics

Brooklyn judicial candidates accuse local party chief of holding illegal fundraiser for their opponents

New York judicial candidate has spent over $33K from campaign coffers on other candidates and causes

Brooklyn judicial elections take an even more dismaying turn

 

For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.

The Importance of Being Chief Justice

I am delighted to present our first guest post, from my colleague Lawrence Friedman.

Successful lawyers excel at framing arguments. And for no lawyer in the United States is this skill more important than Chief Justice John Roberts. All of the justices of the Supreme Court seek to frame issues in ways that makes the results they reach seem inevitable. But only the chief justice speaks with the authority of his office outside the confines of the Court’s written opinions, opportunities that he seeks to maximize to ensure all of us that, regardless of how they rule in particular cases, the federal courts are just going about their business.

Consider two recent examples. The first is the chief justice’s response to President Trump’s belief that judges rule against his administration on the basis of politics. The chief justice would have none of it. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he 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 each of these three sentences, Roberts essentially made the same point: federal judges are independent of politics and treat all who come before them equally. Note that Roberts did not dispute that federal judicial appointment process is political. Rather, he framed the issue in terms of what judges do after that process has ended.

The second example comes from the Chief Justice’s 2018 Year-End Report on the Federal Judiciary. This annual update on the workload of the federal courts typically addresses a recent issue of note to the federal court system. All government reports should be so readable.

This year, the Chief Justice begins by recounting Justice Louis Brandeis’s effort, in 1928, to draft a dissent in Olmstead v. United States—an opinion that foreshadowed a doctrinal change nearly four decades later to the judicial understanding of the Fourth Amendment’s privacy protections.

The Brandeis story captures the way in which the courts work – by reasoning their way to particular conclusions – and the nature of doctrinal change over time. And the story highlights the importance of judicial law clerks. Clerks are recently-graduated law students who assist the federal judiciary at all levels in resolving cases by providing research and drafting assistance.

But the story is not just about the importance of this resource to the judiciary. It also frames the Chief Justice’s report on the efforts of the Federal Judiciary Workplace Conduct Working Group to determine the changes needed to judicial conduct codes to ensure that they adequately reflect concerns for confidentiality, mechanisms for reporting misconduct, and processes for investigating complaints.

As written, the report achieves its purpose. Members of Congress and the general public who take the time to read it are likely to be satisfied with the judiciary’s management of conduct issues and conclude there is no need for monitoring from outside. The judiciary, in other words, can take care of itself.

The point here is that, unlike his colleagues, Chief Justice Roberts must always keep an eye on the federal judiciary’s institutional reputation. The independence of the third branch is more fragile than that of the other departments of the federal government. The courts are possessed, as Alexander Hamilton famously put it, of neither the purse nor the sword. Congress, for example, controls not just the judiciary’s budget, but both the number of judges at every level and their jurisdiction.

We live in a time when the President of the United States regularly belittles the institutions of democracy, a time when serious proposals are being floated in the new House of Representatives to expand the number of Supreme Court justices to counter the perceived effect of recent appointments. Given his recent statements, the Chief Justice appears to be acutely aware that the federal judiciary’s independence, and popular respect for its rulings, turns on the extent to which the people believe that judges, once appointed, have no side to take in particular cases, and can keep their own house clean. If the pitched battles over Brett Kavanaugh’s appointment and partisan gerrymandering are any guide to the future, the chief has his work cut out for him.

Lawrence Friedman teaches constitutional law at New England Law | Boston and is the author, most recently, of Modern Constitutional Law.

In Memoriam: Craig Shaffer

I was deeply saddened by the passing last month of Craig Shaffer, U.S. Magistrate Judge for the District of Colorado. Judge Shaffer was a kind, brilliant, thoughtful, and highly respected judge. He authored a number of seminal decisions during his tenure on the federal bench, including an early, important opinion on the discovery of electronically stored information. He was also deeply committed to improving the justice system behind the scenes, as a member of the federal Advisory Committee on Civil Rules, a member of the Sedona Conference, and a frequent author on legal matters.

Judge Shaffer was also a lovely person, generous with his time and ideas. I consulted him from time to time about my own ideas on the discovery and rulemaking process, and he unfailingly offered observations that both clarified and magnified my original thoughts.

My sympathies to Judge Shaffer’s family and the entire legal community. He will be sorely missed.