Jordan Singer

Iowa has used a nominating commission to select its judges for more than half a century. As currently comprised, the commission includes a chair (the most senior justice of the state supreme court other than then chief justice) and sixteen members, half of whom are chosen by the governor and the other half of whom are chosen by the state bar association.

But new legislation, introduced by state senator Julian Garrett, would radically revise the composition of the commission, by stripping the state bar of all but one representative, and leaving the remaining members to be appointed solely by the governor. Garrett has called the existing system “unfair” and “undemocratic,” because the bar association appointees are not directly accountable to the electorate.

It’s worth emphasizing that the bill has only been introduced, and may never see passage. But it’s indicative, at least to me, of a growing skepticism of bar associations and the legal profession generally. This is likely connected to the overall skepticism of professional expertise that is on the rise on American culture. And it means that lawyers and judges will have to work harder, and in different ways, to convince legislators and citizens that their professional knowledge is used for the public good.

Judge to appoint special master to assist in remedy phase of Louisiana judicial election case

Almost five years ago, a local branch of the NAACP in Terrebonne Parish, Louisiana, sued state officials in federal court, arguing that the state’s “at-large” system for electing judges systematically disenfranchised minority voters. After a trial in 2017, the federal district court agreed with the plaintiffs that the existing election scheme was unconstitutional. But the parties could not agree on the appropriate remedy, so the judge has asked both sides to suggest candidates for a special master, who will assist the judge in crafting an appropriate remedy.

“The parties didn’t agree on a remedy and the Legislature didn’t pass a remedy, so now it’s the court’s obligation to come up with a remedy,” [NAACP attorney Leah] Aden said on Saturday. “The court isn’t an expert in drawing maps. Judge Dick wants to do everything by the book, so she’s going to hire someone who’s familiar with drawing maps to aid her as an expert to evaluate the maps that we put up and potentially draw their own map. This person is basically a technical expert.”

A federal judge gave the state Legislature the first opportunity to remedy Terrebonne’s voting system, but the only proposed bill during the 2018 session died in committee.

This has been a fascinating case for observing how one sovereign’s judiciary (the federal courts) addresses fundamental issues pertaining to another (a state court system). It will be equally interesting to see how the final resolution plays out.

Courts in India and Pakistan continue to struggle with congested dockets

Two recent end-of-year reports suggest that justice systems in India and Pakistan remain completely overwhelmed. In Pakistan, the docket of the apex court has more than doubled in five years, to more than 40,000 pending cases this year. This is unfortunately reminiscent of the terrible backlogs that India also continues to experience in its courts.

Part of the problem has to do with human resources: one report notes that India has fewer than 20 judges per million people, as compared to 51 judges per million people in the UK, and 107 judges per million people in the US. But it is also not appropriate to blame the docket crisis solely on not having enough judges. The court system needs to think more creatively–and frankly, work harder and smarter–about resolving cases efficiently.

Previous entries on India’s docket crisis can be found here, here, here, and here.

Native tribes in Alaska push for tribal courts

Several tribes native to Alaska are considering a push for their own tribal courts. One such court, for the Tlingit and Haida tribes, has been operating in Juneau since 2007.

The AP reports:

Marina Rose Anderson, the vice president and administrative assistant for the Organized Village of Kasaan, was among the officials who attended the conference. Issues that happen close to home should be handled close to home, Anderson said, rather than having people outside the community make legal decisions.

Her goal is to make the tribe as independent as possible, Anderson said.

Hoonah Indian Association Tribal Administrator Robert Starbard had similar thoughts.

“I think for us, the primary importance of a tribal court is that it gives additional legitimacy and eligibility to our sovereignty,” he said. “You cannot be sovereign if you cannot exercise control over what happens with your ordinances and laws. Tribal court is a mechanism that allows us to do that.”

Indeed.

Federal courts will still operate during shutdown

The United States Courts will use court fees and reserve resources to operate during the current government shutdown. The Courts can continue to operate for about three weeks, until January 11, 2019.

No more federal judicial confirmations this year

The Hill reports: Feeling heat from the left, Dems reject judges deal.

A Senate Democratic aide said Wednesday that [Chuck] Schumer would not agree to approve the final slate of judicial nominees as the Senate prepares to wrap up its work for the year.

Progressives skewered Schumer for agreeing to two previous deals this year, one in August and the other in October, when he signed off on a group of court picks in exchange for letting vulnerable incumbents head back to their home states to campaign before the November midterm election.

Current number of vacancies in the federal courts: 143.

New developments in lawsuits concerning judicial elections in Alabama and Arkansas

Two lawsuits involving judicial elections–one each in Alabama and Arkansas–were the subject of new developments this past week.

In Alabama, the NAACP and Lawyers Committee for Civil Rights filed a federal lawsuit alleging that the state’s method of electing state appellate judges discriminates against African-American voters. The lawsuit claims that the absence of black judges on any state appellate court is the result of discriminatory vote dilution tactics. The state moved to dismiss the case on the grounds of sovereign immunity, but U.S. District Judge W. Keith Watkins denied the motion to dismiss, and set the case for a bench trial. Attorneys for the state have now taken their case to the Eleventh Circuit Court of Appeals, asking that court to overturn Judge Watkins’s refusal to dismiss the case.

The Arkansas case involved a controversial attack ad against incumbent state judge Courtney Goodson, who was seeking reelection. The Judicial Crisis Network, a conservative group, had been running the ad on several stations in northwest Arkansas when a county judge barred its further broadcast in May. The corporate owner of a Little Rock television station appealed the injunction. But last week, the state court of appeals ruled that the issue was now moot, since Justice Goodson has won reelection, and the ad was no longer airing. The issue may be moot for now, but the larger issues–prior restraint of political speech, the influence of “dark money” in elections, and the wisdom of electing judges in any event–remain.

Polish government accedes to ECJ ruling on forced judicial retirement

It has been a while since we checked in on Poland’s judicial reforms, most of which have been openly hostile to the country’s judiciary. One of the latest reforms would lower the retirement age of judges from 70 to 65, effectively removing about two dozen experienced judges from the bench, and correspondingly allowing the government to appoint new judges in their place. It’s court packing without the packing.

The European Commission sued Poland over the legislation in the European Court of Justice (ECJ), on the grounds that it was part of a larger set of “systemic threats to the rule of law” which could trigger the loss of Poland’s voting rights in the European Union. In October, the ECJ suspended the legislation pending a permanent resolution. It upheld the interim injunction on Monday.

In response, Polish President Andrej Duda signed new legislation revoking the early retirement bill. Is this a sign that the Polish government is moderating its stance on judicial reform under EU pressure? Stay tuned.

California’s Chief Justice makes an unhelpful announcement

California’s Chief Justice, Tani Cantil-Sakauye, announced yesterday that she had left the Republican Party and had re-registered without party affiliation. She explained that her decision had been spurred by the confirmation of Brett Kavanaugh to the U.S. Supreme Court.

“I’ve been thinking about it for some time,” Cantil-Sakauye said, noting that she had discussed her decision with her husband and friends. They told her, Cantil-Sakauye said, “you didn’t leave the party. The party left you.”

Chief Justice Cantil-Sakauye is, of course, entitled to do whatever she wishes with her party affiliation, and she joins many prominent former Republicans who have left the party since the election of Donald Trump. There is nothing in the least bit wrong with her personal decision. But then she dropped this little nugget:

“I felt compelled to make a choice now. It better suits what I do and how I approach issues.”

Oh, dear.

The Chief Justice could have simply stated that she had changed parties as a personal matter, and that no party influenced her decisions on the cases that came before her. Now she has made her political beliefs an explicit part of her job description. I do not want to suggest at all that judges are oblivious to politics, or even that political considerations do not affect judicial decisions. But to place one’s own party affiliation at the core of “what [one] do[es] and how [one] approach[es] issues” is singularly unhelpful for building confidence in the judiciary.