Ohio Democrats to Democratic judge: Don’t run for chief justice; you could win!

The perverse nature of choosing judges through partisan elections is currently on display in Ohio, where some Democrats see no benefit to a highly qualified member of their own party running for chief justice.

The state’s current chief justice, Maureen O’Connor, is retiring in 2022, and two associate justices of the state supreme court, Patrick DeWine and Jennifer Brunner, are considering running for the open seat. In Ohio, where judges must run in partisan primaries, their party affiliation is well-known. DeWine is a Republican and Brunner is a Democrat. The retiring O’Connor is also a Republican.

Justice Brunner may well make an excellent chief, and she is certainly saying all the right things about serving the people of Ohio. But to some Democratic bean-counters, a Brunner victory only has potential downside.

Here’s why: If Brunner becomes chief justice, her current seat in the state supreme court could be filled by Governor Mike DeWine.* DeWine, a Republican, would presumably appoint a Republican judge to that seat, meaning no net gain on the court for the Democrats. Moreover, if Brunner becomes chief justice, she will only be able to serve one full six-year term before hitting the mandatory retirement age, meaning that she would have to step down from the court after the 2028 election. If she remained in her current position, however, she could in theory stay on the court until 2032.

If you subscribe to the view that judges are simply legislators in robes, maintaining a certain number of (D)s and (R)s on the court is more important than each judge’s skill, integrity, experience, and temperament. But if you view judges as actual people with professional pride and commitments to excellence, treating them as fungible back-benchers is both inaccurate and insulting.

I have no view about who would make the best chief justice for Ohio. But I do know that it has little to do with a forced party affiliation, and much more to do with people skills, administrative capacity, ambition, effort, intelligence, and drive. I hope that Ohioans agree.

* Yes, Mike DeWine is related to Justice Brunner’s opponent, Patrick DeWine. They are father and son, respectively.

The disconnect between what Americans want in their judges and how they choose them

Professor Herbert Kritzer has a very interesting new article in Judicature, exploring the qualities Americans say they want in their state judges. It turns out that professional qualities like reputation for integrity and respect from leaders of the legal community are heavily desired, while political qualities like running for holding office or respect from party leaders is much less desired.

So then why do so many states still choose their judges through partisan, or at least politically influenced, elections? I offer a few thoughts at the IAALS Blog.

India develops rules for live-streaming court proceedings

The E-Committee of the Supreme Court of India has developed a set of draft rules for live-streaming and recording court proceedings. The draft rules are open for public comment through June 30.

The draft rules exclude a number of case types, including many related to family law, gender-based violence, and cases which “in the opinion of the Bench may provoke enmity amongst communities likely to result in a breach of law and order.” Parties will also have a chance to object to livestreaming in advance.

Federal cases take about a year to resolve on average — but don’t read too much into that average

The Juris Lab has a nice, approachable statistical overview of federal civil case disposition over the past twenty years. It notes that the “average” case takes about 344 days from filing to termination, although that number varies widely depending on case type, jurisdiction, and nature of disposition. (Cases ending in a trial verdict take another year to resolve on average.)

The oveview does not attempt to account for all the variation in disposition time, and does not even mention obvious factors like judicial vacancies, complex procedural settings like MDLs, the influence of ADR on filings, CJRA-style reporting pressure, or settlement pressure. But it is still very useful.

I have only recently come across The Juris Lab, which aims to wed legal issues with big data. It seems like a promising site, and worth checking out on a regular basis.

Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

States reprimand judges and judicial candidates for electoral improprieties

Judges in Florida and Ohio separately received public reprimands from their state supreme courts this week for interfering with judicial elections during the 2020 campaign.

In Florida, Judge Richard Howard received a reprimand for trying to discourage a lawyer from challenging a sitting judge during a local election, and instead urging the lawyer to challenge a different judge. While Judge Howard did not make the statements public, the state supreme court found that his actions “failed to promote public confidence in the impartiality of the judiciary,” among other things.

In Ohio, Karen Falter, a candidate for a trial court seat in Hamilton County, was reprimanded for mailing campaign literature falsely accusing her opponent (then the incumbent) of moving into the county only three years earlier in order to take a judicial appointment. The state supreme court affirmed the reprimand, concluding that the truth about the opponent’s residency was easily verifiable and that making the false statement amounted to at least a reckless disregard of the truth.

Public reprimands are a significant form of attorney and judicial discipline. While the attorney may continue to practice and the judge may remain on the bench, the reprimand and the reasons therefor become part of the public record.

Direct elections are a troublesome way to choose judges, but as long as states require them, candidates need to comport their electoral behavior to preserve public confidence in the judiciary.

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.

Montana Republicans increase political pressure on state supreme court

Republican officials in Montana, who declared open season on their own judicial system earlier this year, fired a new salvo at the courts late last week. State Attorney General Austin Knudsen requested that the entire state supreme court recuse itself in a case involving a legislative subpoena of internal court documents.

In March, Governor Greg Gianforte signed into law a bill that would eliminate the state’s Judicial Nomination Commission, and allow the governor to fill judicial vacancies directly. Several weeks ago, the Republican legislature issued a subpoena to the state court administrator, seeking internal emails and other court documents (Including an internal poll) in which state trial judges allegedly expressed opinions on the constitutionality of that legislation. The court administrator asked the state supreme court to quash the subpoena, and Chief Justice Mike McGrath recused himself from that determination because he had lobbied the governor not to sign the bill. The remaining six members of the state supreme court quashed those subpoena in mid-April, pending a further hearing.

The AG now asserts that all members of the supreme court are directly conflicted from participating in any future hearing on the issue, because they would be ruling on access to their own internal documents. The justices’ continued participation in the case constitutes, in the AG’s words, “not merely the appearance of impropriety. This is actual impropriety.”

At first glance, state Republicans have laid a trap for the judiciary worthy of a cartoon villain. If the remaining justices recuse in order to avoid the appearance of impropriety, the Republicans will challenge any replacement judges on same grounds until they find judges that they feel will rule in their favor. On the other hand, if the justices decline to recuse themselves, they will face continued allegations of bias and impropriety, and will come under heavy political pressure to allow the subpoena to go forward.

Never mind that the allegations of impropriety appear to have absolutely no merit. None of the six justices on the court have spoken in any official public capacity about the subpoenas or the pending legislation. But that is beside the point: the real purpose of the recusal motion is to turn public opinion against the courts by painting the judiciary as hopelessly biased.

There is a way out of this trap, but it will require several careful steps.

Continue reading “Montana Republicans increase political pressure on state supreme court”

Alaska courts hit by cyberattack

Alaska’s court system was hit by a malware attack this week. The problem was caught quickly, which prevented significant damage. Nevertheless, certain public features on the court system’s website–including the ability to search court cases and view Zoom hearings–were temporarily taken offline.

The situation is reminiscent of the Solar Winds cyberattack that hit the federal courts earlier thisyear, as well as the ransomware attack that affected the Texas court system last May.

The lesson: whether you wear a robe, a suit, or elastic pants to work, give thanks to your IT Department today.