Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction

A guest post by Lawrence Friedman

Among the potential nominees for the U.S. Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s passing was Barbara Lagoa, currently a judge on the U.S. Court of Appeals for the Eleventh Circuit. Like the eventual nominee, Seventh Circuit Judge Amy Coney Barrett, press reports labeled Lagoa a “conservative jurist,” supported by statements from progressive organizations like Alliance for Justice, which asserted that Lagoa’s decisions “raise concerns that she will side with the wealthy and powerful at the expense of everyday Americans.”

One problem with this statement is its premise—namely, that cases in which corporate interests prevail necessarily are the result of a judicial predisposition, rather than the application of controlling legal principles to the facts at hand. Though the results in some cases may reflect motivated reasoning, it remains that judges, both state and federal, in the main seek to honor their oaths to apply the law to the facts without fear or favor. There may be no better example of this commitment to the evenhanded administration of justice than Justice Ginsburg herself, as she was responsible for a series of civil procedure decisions over the past decade that effectively benefited corporate interests at the expense of individuals.

To be sure, it is unlikely you will find Ginsburg’s decisions on the principle of general jurisdiction in any compilation of her most important work as a judge. For example, a new collection curated by Corey Brett Schneider for his Penguin Liberty imprint, Decisions and Dissents of Justice Ruth Bader Ginsburg, features her majority opinions, dissents, and appellate briefs from cases involving gender equality and women’s rights, reproductive freedom, and voting and civil rights—with nary a mention of the pathmarking decisions on federal civil procedure she consistently wrote during her time on the high court.

Continue reading “Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction”

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

The political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

The mortifying state of our Supreme Court confirmation politics

The first of a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

So here we are, not even five years removed from the embarrassing political melee that followed the death of Justice Antonin Scalia, and the same movie is playing out in even more absurd fashion.

Senator Mitch McConnell (R-KY) is working the Republican back benches to ensure a yes vote for the President’s Supreme Court nominee — never mind that there is, as of yet, no nominee to vote on. This is the same Senator McConnell who refused to even hold a hearing for then-nominee Merrick Garland in 2016 on the flimsy pretext that it was too late into a election year. To call McConnell’s reversal hypocritical is an insult to hypocrisy.

Remarkably, the Democrats have acquitted themselves even more poorly. After hectoring the American public in 2016 with the smug insistence that the Senate must vote on the Garland nomination (using the Twitter hashtag #DoYourJob), and after four years of accusing the Republicans of “stealing” the seat by not holding a hearing for Garland, the Democrats now declare —with no apparent sense of irony — that they will do everything possible to prevent a vote on the as-yet-unnamed nominee. The charge has been led, most distressingly, by the Democrats’ own Vice Presidential candidate Kamala Harris, who previously pledged to shirk her Senate duties by refusing in advance to vote for any Trump appellate court nominee, and who now promises an extended vacancy crisis in connection with her efforts to raise campaign funds

How did we get here? Continue reading “The mortifying state of our Supreme Court confirmation politics”

In Memoriam: Ruth Bader Ginsburg

The Rosh Hashanah holiday precluded me from posting on the passing of Justice Ruth Bader Ginsburg at the age of 87. There will be plenty of opportunity to discuss the fallout of her death for the Court and for the American politics. For now, she is deserving of a quiet moment of reflection and appreciation.

Justice Ginsburg life and career were remarkable. If you have not seen “On the Basis of Sex,” which describes much of her early life and career, please do.) The accolades pouring in from colleagues and former clerks tell more than an outside observer could say. And she was a true source of inspiration to multiple generations of lawyers.

Justice Ginsburg was human, and prone to mistakes and frailties like all people. I can’t imagine that she really enjoyed the godlike status given to her by left-wing activists, a status that now has left much of the country in enormous pain and panic.

I hope that we can all take a deep breath and mourn Justice Ginsburg for who she was, and admire the life she led. I certainly shall.

IAALS seeks new CEO

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS), one of the premier legal reform organizations in the United States, is seeking a new CEO. The full details can be found here.

As a proud alumnus of, and occasional ongoing contributor to, the IAALS family, I can confirm first-hand that this is a remarkable organization and a remarkable opportunity. It will take an equally remarkable person to take IAALS into the 2020s and beyond, but I encourage all qualified people to give it serious consideration.

Federal appellate courts are fully staffed for the first time in 43 years

Ballotpedia reports on Administrative Office of the U.S. Courts statistics, showing that every one of the 179 judgeships on the U.S. Courts of Appeals has been filled, with no pending vacancies. It is the first time since 1977 that there are no vacancies at this level.

There are still 70 district court vacancies, representing more than 10% of the total judgeships at that level. But the courts are slowly working their way back to the judicial capacity to which they are statutorily authorized.

In Memoriam: Ralph Gants

Today brought the terrible news that Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, passed away days after suffering a heart attack. He was 65.

I first met Chief Justice Gants more than two decades ago, when he was an Assistant United States Attorney and I was his student in a white collar crime course at Harvard Law School. He was an active and encouraging teacher both in class and behind the scenes.

Justice Gants eventually moved to the judiciary, and made a clear mark as Chief Justice. His focus on attorney well-being and justice for all set the tone for the entire state judiciary. While I sometimes disagreed with his administrative decisions, I greatly admired his passion, commitment, and sincerity. He will be sorely missed.

Scotland will hold jury trials in movie theaters

Courts across the world are continuing to think creatively in light of the ongoing COVID-19 pandemic. Some Scottish courts will now be holding socially distanced jury trials in movie theaters, where the 15-person juries can spread out, watch the presentation of testimony and evidence on the big screen, and then deliberate in person.

This follows similar efforts in the UK and US to use large open spaces for trials, including fairgrounds and convention centers. While we all look forward to the day when trials are back in a proper courtroom, the efforts to keep the wheels of justice turning are surely praiseworthy.

A bad look: Israel’s courts ask Google and Twitter to scrub news stories critical of judges

Ha’aretz reports that Israel’s Courts Administration has been asking Google, Twitter, and other social media and search sites to scrub selected stories that appear to be critical of Israeli judges. While some of the stories are apparently incomplete or inaccurate, others appear to be straightforward mainstream media reports in which one or more judges is directly criticized for official actions. From the story:

“In some cases, the Courts Administration didn’t inform the relevant media outlets that it had requested an article’s removal. Moreover, it never informed the Justice Ministry that it was trying to remove such articles, and its legal adviser, Barak Lazer, did not mention this fact when he briefed the Knesset on the task force’s work in 2018.

The task force was formed by former Supreme Court President Asher Grunis due to an increase in online attacks on judges, particularly on social media. Its job was to ask social media companies to remove offensive posts. It also warned the people who wrote them that if the posts weren’t removed, the Courts Administration may take legal action against them.

A Courts Administration official said the task force contacts Google only if a judge complains; it doesn’t go looking for problematic content online. But a senior Justice Ministry official said that this did not make its conduct acceptable.”

No, it doesn’t. Wow.

No, it doesn’t.