Fife et al. on state Chief Justice selection

Madelyn Fife, Greg Goelzhauser, and Stephen Loertscher have posted their article, Selecting Chief Justices by Peer Vote, to SSRN. Here is the abstract:

What characteristics do state supreme court justices prioritize when choosing leaders? At the federal level, collegial court chiefs are appointed or rotated by seniority. A plurality of states permit peer-vote selection, but the consequences of employing this mechanism are not well known. We develop a theory of chief justice selection emphasizing experience, bias, and politics. Leveraging within-contest variation and more than a half century’s worth of original contest data, we find that chief justice peer votes often default to seniority rotation. Ideological divergence from the court median, governor, and legislature is largely unassociated with selection. Justices who dissent more than their peers are, however, disadvantaged. We find no evidence of discrimination against women or people of color. The results have implications for policy debates about political leader selection.

This is a useful study, in that it suggests that state high courts are choosing their chief administrative officers (who are also often the face of the state judiciary) primarily on the basis of experience and interpersonal compatibility. To which I say, good.

ABA passes resolution on remote court proceedings

The American Bar Association House of Delegates has passed a resolution regarding the use of remote proceedings. The resolution attempts to balance the courts’ need to move forward with their dockets, parties’ entitlement to due process, and the public right to access. Some key points:

FURTHER RESOLVED, That the American Bar Association urges that any authorization of mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction;

FURTHER RESOLVED, That the American Bar Association urges that use of virtual or remote court proceedings be permitted when litigants have consented to the use of such procedures, including being offered a delay until a safe, in-person proceeding can be held;

FURTHER RESOLVED, That the American Bar Association urges that all virtual or remote court proceedings be tailored to the needs of participants and take into account the type of case and proceeding to be conducted, the participants involved, and whether participants are likely to be represented by counsel…

FURTHER RESOLVED, That the American Bar Association urges that advance notice be provided to the public of all virtual or remote proceedings and that full and meaningful public access to such proceedings be guaranteed, while also protecting the privacy of those proceedings legally exempted from public access…

The entire resolution can be found here.

Judicial Conference to push for legislation and funding to assure safety of federal judges

In the wake of the horrific shooting of Judge Esther Salas’s son and husband at her New Jersey home last month, the Judicial Conference of the United States has resolved to seek aggressive legislation and funding to better protect federal judges and their families. The Judicial Conference’s press release, which lays out its proposals, is here.

Let’s hope that Congress acts quickly to provide the necessary resources.

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”

Federal Circuit affirms PACER fee decision

After a two-and-a-half year wait, the Federal Circuit Court of Appeals has affirmed the decision of Judge Ellen Segal Huvelle in National Veterans Legal Services et al. v. United States. The plaintiffs in that case argued that the Judicial Conference of the United States and the Administrative Office of the U.S. Courts exceeded their statutory authorization by using PACER fees to fund internal court projects that were unrelated to the administration of the PACER system itself. (PACER is part of the federal courts’ electronic filing system, which allows the public to access most documents that are filed for a 10 cent/page fee.) The government argued that funding the additional projects did not exceed the court’s authority.

In March 2018, on cross-motions for summary judgment, Judge Huvelle split the difference, concluding as a matter of statutory interpretation that the courts had properly used PACER fees to fund certain projects–including the development of the electronci filing system itself–but had overstepped its bounds in using funds to provide electronic notice to jurors, assist with state court records in Mississippi, and other tangential projects. (I previosuly explored Judge Huvelle’s opinion, and the policies underlying the larger question of PACER fees, here.)

The Federal Circuit concluded that Judge Huvelle’s opinion “got it just right.” But it also added its own gloss on the relationship between the courts and the other branches of government, as seen through the lens of PACER revenue. Continue reading “Federal Circuit affirms PACER fee decision”

Pandemic-induced court changes will remain long-term

Several courts are beginning to announce that technological changes made at the start of the coronavirus pandemic will remain for the foreseeable future. Top judicial leaders in many states have concluded that “Zoom courts are here to stay,” and are working to update their infrastructure. In addition, Ohio will continue holding webinars in lieu of court-mandated live parenting classes, and will improve the tech connection between courthouses and county jails. Meanwhile, Maine has issued official guidance for those who want to watch remote hearings, and is seeking federal funds to further update its technological capabilities.

I generally detest the philosophy of “never let a crisis go to waste,” which too often exploits catastrophes to satisfy a partisan wish list. But this is something far more organic, and the American courts will come out of this pandemic stronger and more flexible for having survived this technological trial by fire.

All 13 U.S. Courts of Appeal now feature live streaming

Many courts moved to some form of live streaming–either audio or video–since the start of the coronavirus pandemic. State courts have led the way, although federal courts have also made changes to improve public access and transparency. (Even the Supreme Court offered telephonic access to a few arguments.) Now, Bloomberg Law reports, all thirteen federal appellate courts offer live streaming.

The courts are still coy about whether they will maintain live streaming once the pandemic subsides. Some courts will certainly hold onto it — the Second and Ninth Circuits, for example, have already been live streaming for years. But hopefully other courts will also see the benefit — and associated lack of harm — with letting the public look in on the administration of justice.

Dutch court raises official doubts about legitimacy of Polish judiciary

I have been remiss in posting regularly about the assault by Poland’s ruling PiS party on the country’s judiciary. The problems began back in 2017, when President Andrzej Duda and his compatriots began intimidating and pressuring the state’s judiciary undet the guise of ferreting out the remnants of communism. The government’s efforts included a reform bill that gave the ruling party enormous power to select judges, an attempt at forced judicial retirement, and repeated acts of political intimidation.

The assault continued last year with the creation of a politically charged “Disciplinary Office” for judges whose rulings did not tow the PiS party line, and an effort by the deputy justice minister to blackball judges critical of the party.

Duda was elected to another term last month, and the capture of the state’s once-independent judiciary now appears to be sadly complete. The court system’s independence is now so in question that a Dutch court has refused to extradite a suspect back to Poland unless forced to do so by the European Union. A Reuters article provides more context:

Polish rule of law has become an increasing matter of dispute within the EU, as critics say the ruling nationalist government has undue influence over judicial appointments.

The International Chamber of Amsterdam’s District Court said it did not believe Polish courts were independent of government and it would not extradite the suspect until the EU Court of Justice told it to.

In April, the EU executive opened a case against Poland’s government over muzzling judges. That came after Poland had passed a new law making it possible to punish judges who criticize the system.

“These developments harm the independence of the Polish judiciary so much that it cannot operate independently of the Polish government and parliament,” the Dutch court said in a statement.

While Democrats are tactlessly trying to shame the Supreme Court and the President inanely attacks judges on Twitter, real problems of judicial independence are spreading around the world. Where is American leadership on this issue?

The destruction at Portland’s federal courthouse

Sixty-one days of unbridled Antifa thuggery has destroyed the entire front of the Mark O. Hatfield United States Courthouse in Portland, Oregon. Graphic video from the local news below.

Disgusting and appalling.

Another Senator joins the federal judicial nomination Hall of Shame

Senator Josh Hawley (R-MO) said in an interview that week that “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” He added, “By explicitly acknowledged, I mean on the record and before they were nominated.” Hawley championed his position as a way of correcting “an unbridled act of judicial imperialism,” the point “at which the modern Supreme Court felt it no longer had to follow the Constitution.”

Hawley is of course entitled to his views on the abortion debate, but his explicit refusal to vote for anyone who does not pass his narrow litmus test represents a direct assault on the Third Branch of government. The percentage of the Supreme Court’s cases concerning abortion are miniscule compared to the wide range of other matters it hears — matters that evidently are of no moment to Senator Hawley. Whether he is fully sincere in his pledge, or just making a political play, his ex ante refusal to even consider qualified nominees for the Court is a wholesale deriliction of his duty as a United States Senator.

Sadly, Hawley is not alone. This blog has taken to task Senator Kamala Harris (D-CA) for her equally repugnant vow not to vote for any of the President’s nominees, and Senator Mazie Hirono (D-HI) for her inappropriate questioning of judicial nominees.

Harris in particular has ambitions for a national political role. But such open hostility to the judiciary, and the readiness to treat a co-equal branch of government as a political plaything, should disqualify Hawley, Harris, and Hirono from any further national office.