Author: Jordan Singer

On exasperated judges

This short opinion by United States District Judge Vanessa Gilmore, bemoaning the parties’ “whiny letters” and chastising counsel to “Please stop trying to become my least favorite lawyers” has been making the rounds over the past couple of weeks. It is noteworthy because judges do not normally write like this, either in style or substance. They may think it–judges are human, after all–but to put it in an opinion for the world to see adds a dramatic, and intentional, touch.

This is not the first judicial opinion to call out the attorneys for conduct or argument that the judge finds annoying. Used judiciously (no pun intended), an occasional sprinkling of exasperation in an opinion can be very effective. It humanizes the judge–who among us hasn’t experienced the frustration of someone wasting our time?–and it underscores the judge’s role as guardian of the court system and the legal process. As the most visible members of the court system, judges must often police the system’s other users and remind them of professional and community standards. A carefully considered dose of exasperation can do the trick.

Here is an example of what I mean: In this 2017 opinion rejecting a proffered plea deal between the federal government and a corporate criminal defendant, U.S. District Judge William Young began:

Let’s see if I’ve got this straight.

Period. End of paragraph. Not the standard way to begin an opinion, to be sure. But that line (and a few others similar in tone) perfectly captured the court’s incredulity at the parties’ proposal. It also captured the court’s belief that allowing the specific form of corporate plea deal proposed by the parties would be detrimental to the public. Despite the occasional bits of snark, the opinion plainly speaks not just for its author but for the community that the law is intended to protect.

But it is also easy to go too far. As a law student, I read with amazement the colorful beatdowns of seemingly incompetent and evasive lawyers by U.S. District Judge Samuel Kent. No infraction or argument was too small to avoid Judge Kent’s notice. He berated counsel for drafting pleadings as if written in crayon, and mocked others for seeking to transfer the case out of Texas. His opinions were sarcastic and funny, but they were also cruel, and unnecessarily so. Rather than raising the bar for legal practitioners, they ridiculed the legal profession itself. (Judge Kent’s final coup de grace was his impeachment and imprisonment in 2009 for sexually abusing two female employees.)

Expressions of judicial exasperation can be uplifting, humanizing, or debasing. At their best, they identify the judge as a human being possessing better-than-average wisdom and professionalism, if not infinite patience. At their worst, they reveal the judge to be all too human and unable to conceal contempt.

It is difficult to always be the adult in the room, especially in this age where many of our most prominent citizens are prone to public tantrums. But always being the adult is the essence of the judicial role. Judge Gilmore’s order may elicit a certain amount of personal sympathy among her readers, but it does little to advance respect for the judiciary as a whole.

Judicial reforms introduced in West Virginia

In the wake of several scandals that rocked its supreme court and led to a number of impeachments, West Virginia has introduced a series of reforms to improve public confidence in its judiciary. This week, Chief Justice Beth Walker updated the state legislature on the court’s internal reforms, including new travel and financial policies to combat the budgetary abuse that was endemic in the court until just a few months ago.

Separately, the state’s Judicial Investigation Commission has asked candidates in judicial elections to call on third parties to stop running false or misleading ads against their opponents, and to disavow any false or misleading statements that are made. While this opinion will be difficult to enforce–especially in a tightly-contested race–it would be refreshing for candidates to commit to it. There is little benefit to winning a judicial election, only to see public confidence plummet in the judiciary because the candidates are being routinely trashed on TV.

 

Venezuelan Supreme Court justice flees country, exposes Maduro regime

A second Venezuelan judge in the last fourteen months had fled the country, further exposing the Maduro regime’s efforts to exert total control over the state’s judiciary. Christian Zerpa, a former party loyalist who was recently appointed to the Venezuelan Supreme Court, surfaced in Florida after his defection and gave a taste of the regime’s interference with the judicial process.

Zerpa surfaced publicly in Miami on Sunday, describing how he received directions from the influential first lady Cilia Flores on how to rule in politically sensitive cases.

As a newly installed justice, he recounted being summoned to the court and told to sign off on a key ruling without first reviewing its details. It disqualified three elected representatives of Amazonas state from taking their seats in congress following the opposition’s sweep of legislative elections in 2015.

The key ruling cemented Maduro’s power, preventing the opposition from amassing a two-third super majority that would have severely curtailed Maduro’s power.

Zerpa apologized for propping up Maduro’s government as long as he did, saying that he feared being jailed as a dissident where his life would be put at risk.

“I will not be able to return to Venezuela,” Zerpa said. “I am a dead man.”

 

Mexico’s Supreme Court voluntarily slashes its own pay

Last month, the new President of Mexico, Andres Manuel Lopez Obrador, publicly criticized the salaries of his country’s judges. It is now being reported that in response, the eleven justices of Mexico’s Supreme Court voted internally to reduce their pay by 25%.

Although the court said that its decision was made “in the interest of efficiency, savings, transparency and honoring the constitution,” this is plainly a response to Lopez Obrador’s relentless public statements on the subject. It’s a clear example of how external pressures can affect internal decision-making about court administration.

 

The coming impact of the shutdown on the federal courts

The United States Courts will run out of funding this coming Friday, January 11. If the federal government is not funded and operating by that date, case processing will be immediately affected. While the likely impact will vary from district to district, it is certain that civil cases will suffer first, with trials and hearings being postponed as the courts dedicate their essential staff to criminal proceedings. Bloomberg Law has a good look at how the courts are handling the situation.

We are already starting to see some negative effects on civil cases in certain districts. Should the shutdown linger, one would expect to see existing civil cases settle at higher rates, and future cases filed either in state courts or in private arbitration settings. None of this, of course, is good business for the federal court system. Let’s hope there is a resolution soon.

 

Texas judges disciplined for mutual election endorsements

Two Dallas-area judges have been disciplined by the State Commission on Judicial Conduct for endorsing each other’s bid for reelection this past fall.

The commission issued two public warnings to both Kim Cooks, judge of the 255th District Court, which handles family law, and Andrea Martin, judge of the 304th District Court, which handles juvenile law.

According to their warnings, during their 2018 campaigns for re-election, Cooks and Martin produced and distributed a campaign mailer that featured their names, titles and likenesses, urging voters to vote for each of them for their respective judicial races. The mailer included statements such as “Keep this talented team working for our families and for our children.”

Cooks and Martin also produced two campaign videos and posted them on social media in which they ask voters to support both of them in their reelection efforts. In one of the videos, the judges state: “We are your Dallas County Judges, your people’s judges. We are the community judges. And we need your help.”

Cooks and Martin also told the commission that they jointly hosted a fundraising event, at which separate tables were set up for each campaign. They also stated that their individual campaigns shared equally in the costs associated with the mailer, the videos and the fundraising event.

The judges pled innocent ignorance, stating that campaign behavior was not covered at new judges school. But that’s a poor excuse, and hardly demonstrates the sensible judgment that one expects of an impartial jurist.

Does Japan owe its tradition of judicial independence to Czar Nicholas II?

Sort of, according to this wonderful article in the Japan Times. It relates how the Japanese courts, operating under the country’s nascent constitution in 1891, refused to bow to political pressure in Japan’s own “trial of the century.” And the Czar-to-be played an important cameo role.
Continue reading “Does Japan owe its tradition of judicial independence to Czar Nicholas II?”

New program provides books for kids waiting for court hearings

A new program, launched in the Kings County Supreme Court in Brooklyn, will provide books for minors to read while waiting for their court hearings. The first shelf of donated books is now available in Brooklyn’s Adolescent and Young Adult Diversion Court.

Previously, residents were “arbitrarily prohibited” from reading books in court, the nonprofit said. The Legal Aid Society worked to get the pilot program in place for over two years with the help of the Office of Court Administration, Judge Craig Walker — who presided over APY — and others, the organization said.

Books already provided by Penguin [Random] House for the program include “Decoded” by Jay-Z, “Born A Crime” by Trevor Noah, “Ghettoside” by Jill Leovy and several by Ta-Nehisi Coates.

“What better way to help stimulate a mind in a positive way than to provide a book,” said Hon. Craig S. Walker, presiding judge of the Criminal Term Youth Part, Kings County Supreme Court. “It may seem like a small and meaningless gesture to some, but if we want these young people to aspire to do better, we need to provide them with the right tools in order for them to achieve their goals. That starts right there, in the Courtroom.”

This sounds like a great program, and kudos to those visionary enough to cut through the red tape to make it happen. One would think that eliminating the “arbitrar[y] prohibit[ion]” of reading books while waiting for a hearing would have been an easy call.

The first batch of donated books is understandably designed to appeal to the court’s users and stimulate their interest. But some of the cited authors have histories of anti-Semitic comments and other troubling behavior. And the program seems to be missing an opportunity to expose the same readers to great works of American civics and legal fiction. I hope that as the program expands, it will come to include more books like To Kill a Mockingbird and David W. Blight’s biography of Frederick Douglass, and relatively less Jay Z and Trevor Noah.

Chief Justice releases Year-End Report

Per tradition, at 6 p.m. EST on December 31, Chief Justice John Roberts released his Year-End Report on the Federal Judiciary. Each year, the report focuses on one specific topic. For 2018, the topic–appropriately–was the work of the federal Working Group on Workplace Conduct.

Many have already focused on the #MeToo aspect of this year’s report. I want to highlight something a bit different. Far beyond discussing the specific outcomes of the Working Group’s activities, Roberts spent quite a bit of time discussing the internal mechanisms by which the Working Group’s suggestions were implemented. He highlighted the roles of the Judicial Conference of the United States, the Administrative Office of the United States Courts, and the various Judicial Conference subcommittees that studied and implemented the Working Group’s recommendations. The enduring image is one of a slow, careful, and multi-layered process–exactly the image the Chief Justice was likely aiming for.

Although it never goes on for more than a few pages, the Year-End Report may be the most deliberately written document that the Chief Justice writes all year. One has the sense that every word had been carefully and repeatedly vetted. That the Chief would dedicate significant space to describing (even at a high level) the federal courts’ internal committee work is telling, and a welcome development for students of court organization.

Happy New Year to all.