Jordan Singer

Kenyan courts vow to resolve 5000 long-delayed cases by the end of September

Facing a backlog of more than 60,000 cases that have been pending between five and ten years, Kenya’s judiciary has pledged to resolve more than 5,000 of them by September 28. The selected docket includes civil, criminal, and commercial cases.

It is not clear to me from the story why these 5,000 cases were chosen, or how practical it is to resolve them all so quickly and still do justice to the parties. Perhaps these cases are ripe for decision or administrative closure, and it is primarily a clerical task to clear them. But if they require resolution on the merits, this sort of frantic clearing of the docket is likely to backfire on the court system–especially since the story suggests that the judges won’t even be back from their six-week vacation until mid-September.

I welcome any thoughts in the comments from those more knowledgeable about the current conditions within the Kenyan court system.

Scenes from a tire fire: Day One of the Kavanaugh hearings

Yesterday’s first day of confirmation hearings for Brett Kavanaugh was a colossal embarrassment for everyone, save perhaps the nominee himself. It began with a series of sophomoric interruptions from protesters inside the Senate chamber–an undignified and unfortunate extension of our current national tantrum, which increasingly values volume and resistance over logic or civility. Watching the early minutes of the hearing, I kept waiting for a member of the committee–Chairman Grassley, or for that matter any of the Democrats within whose camp the protesters fell–to make explicit that such interruptions were entirely inappropriate and undignified. I waited in vain. As it was, the ongoing shrieks made it appear that no one really was in control of the moment.

It went largely downhill from there, culminating later in the day in an appalling libel of Judge Kavanaugh’s former clerk Zina Bash by social media trolls on the left, who accused Bash–a Mexican-born granddaughter of Holocaust survivors–of being a white supremacist. The whole event was a sad display of our dysfunctional politics, and a good example of the behavior that judges work to prevent in their own courtrooms.

Indeed, yesterday’s hearing sorely needed a presiding judge–an authority figure with some spine, wisdom, knowledge, and confidence. Nowhere was that better illustrated than during the interminable debate among committee members about the late-produced (or still withheld) documents relating to Judge Kavanaugh’s career. Continue reading “Scenes from a tire fire: Day One of the Kavanaugh hearings”

Kavanaugh hearings livestream

The confirmation hearings for Supreme Court nominee Brett Kavanaugh commenced this morning in Washington, DC. The hearings began with a series of objections by Democratic members of the committee to tens of thousands of pages of documents that have been withheld by the White House.

The livestream of the hearings (from CSPAN) can be found here.

Examining the impact of President Trump’s judicial appointments

It has been widely reported that President Trump is filling federal judicial vacancies at a much faster pace than his predecessors. But the political impact of that pace is blunted by several factors, including the fact that most existing vacancies were created by the retirement of a previous Republican appointee, and the fact that many circuit courts continue to be dominated by Democratic appointees.

Russell Wheeler of the Brookings Institution provides an outstanding analysis of the impact of the President’s judicial appointments here. It is highly recommended reading, as is everything Russell writes on this and related issues.

More internal strife within India’s court system — UPDATED WITH DOCUMENTATION

Two stories coming out of India caught my eye this past week. The first was an op-ed discussing the ongoing debate about the use of MBA-qualified court managers to gain better control over the administration of the court system. Given the shocking backlog and delay in many of India’s courts, appointing special managers to help streamline the case management process makes good sense. But as is the case with most organizations, the introduction of “outsiders” to clean up an internal mess poses a threat to those already working within the system. Fixing this will require a cultural shift within the Indian court system, probably from the top down. But it will not be easy.

In an unrelated story, but one reflecting some of the same difficulties, an attorney was held in contempt of court and jailed for one month for making disparaging remarks about the court on Facebook. The court referred to the “judge bashing” as a form of browbeating, terrorizing, or intimidating judges.

I cannot find the exact social media post that instigated the contempt charge, so I cannot tell whether the lawyer’s actions were an anomaly or something more pervasive. But the whole story suggests an unhealthy relationship between court and counsel. Attacking the courts on Facebook is childish and unprofessional. But jailing a lawyer for a social media post is (at least seemingly) thin-skinned and cowardly. Unless the post called for violence against judges or the court system, a contempt proceeding would seem to do more harm to the courts than a Facebook post ever would.

UPDATE: The entire contempt order can be found here. It does appear that the lawyer’s Facebook comments were pretty obnoxious (although I am not culturally suave enough to decode them entirely). But the court’s 45-page defense of judicial independence and the “majesty of the law” also seems very over the top. Quoting Othello is a particularly odd, cloying touch. A shorter, sterner statement could have addressed the court’s concerns without making the judges appear so professionally and emotionally fragile.

In the wake of the ugly Aaron Persky recall, a new group arises

The June recall of Judge Aaron Persky in California has led to the formation of a new group, dedicated to making it harder for politically motivated mobs to remove judges from the bench. The Daily Post reports:

San Joaquin County Superior Court Judge Barbara Kronlund, the co-chair of the newly launched Judicial Fairness Coalition, said the group wants to educate the public on the role of judges and look at amending state law to avoid future recalls over unpopular decisions.

“There should be a requirement of misconduct in office, either high crimes, misdemeanors, violating the Code of Judicial Ethics, hearing a case where you have a conflict,” Kronlund said. “It seems to me that makes a lot more sense than what we’ve got going on right now.”

Kronlund has been giving talks to Rotary and Kiwanis groups about the dangers of “baseless” attacks on judges since 2006, after Sacramento County Superior Court Judge Loren McMaster faced a recall threat from gay marriage opponents over his ruling in favor of same-sex domestic partnerships.

Los Angeles Superior Court Judge Paul Bacigalupo, co-chair of the new coalition and president of the California Judges Association, said he also wanted to look into changing the code of judicial conduct to loosen up the restrictions on judges talking about their cases.

That would allow judges to respond to criticism of their decisions, which Persky wasn’t able to do when opponents slammed him over the six-month jail sentence he gave to Stanford sex assailant Brock Turner.

As I have noted repeatedly, one can vehemently disagree with the leniency of the Turner sentence, and still conclude that the removal of Judge Persky was wholly irresponsible. That doesn’t mean that recall should be off the books entirely; if a judge repeatedly shows incompetence or indifference in applying the law or guaranteeing procedural fairness to all parties, a mechanism for removal may well be appropriate. It will be interesting to see how (and if) the Judicial Fairness Coalition works to address that balance.

UK criminal bar offers tentative support for courtroom cameras

The Criminal Bar Association in the United Kingdom has offered tentative support for placing cameras in the courtroom, in part as a means to tamp down “aggressive” behavior by barristers. The organization added that any introduction of cameras must be done carefully so as to shield (as necessary)the identity of victims.

The sentiments were echoed by the Transparency Project, a group which campaigns to improve the clarity of family courts. The group also noted its skepticism that courtroom cameras would control aggressive lawyering.

Protecting the identities of witnesses, victims, and jurors has long been a sticking point for the introduction of courtroom cameras. But these issues have exist–and would continue to exist–in any open court setting. As the recent ugliness surrounding the Manafort trial has shown, judges are up to the task of protecting the identities of jurors and witnesses as needed on a case-by-case basis.

Cook County’s e-filing system continues to experience problems

Cook County’s efforts to implement an electronic filing system has run into its fair share of obstacles over the past year. Last November, the Courthouse News Service filed suit against the county, alleging that the clerk’s office was delaying the posting of public documents online, in violation of the First Amendment. In December, the Illinois Supreme Court gave the county a six-month extension to implement its e-filing system (half the time the county requested), and ordered it to commit all necessary resources to completing the transition. In January, a judge issued an injunction in the Courthouse News Service case which gave the county 30 days to develop a system that would give the press full access to newly filed cases.

After months of turmoil, the e-filing system is now in place. And people don’t like it. At all.

In theory, e-filing is supposed to increase access to the courts, enabling people without an attorney in civil cases to submit legal documents from a computer instead of trekking to a courthouse. But many paralegals and attorneys who find the mandatory platform confusing worry that it’s not user-friendly for people filing motions on their own. The system, launched July 1 by an Illinois Supreme Court order, also requires registrants to have an email address and an electronic form of payment, something advocates say can create barriers for low-income people.

Cook County Circuit Court Clerk Dorothy Brown said she is working with the vendor, Texas-based Tyler Technologies, to make the platform more intuitive. But the changes need to be approved by the Administrative Office of the Illinois Courts because they are part of a statewide program, Brown said.

“It’s been very challenging and difficult for our users as well as our staff,” Brown said. “We’re really asking our users to be patient.”

EU turns up the heat on Poland after PiS works to force judicial retirements

In the wake of a new Polish law lowering the mandatory retirement age of judges from 70 to 65, the European Union has advanced to the next stage of its infringement procedure against the PiS (Law and Justice Party) led government.

The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, which puts 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.

According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by the President of the Republic, which can be granted for a period of three years, and renewed once. There are no criteria established for the President’s decision and no judicial review is available if the request is rejected.

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The Commission’s position is that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.

The Polish government has been given one month to comply with its obligations. I wish I could be optimistic that it will.

In West Virginia, candidates “lining up” to run for vacated supreme court seats

The West Virginia Metro News has more on the aftermath of former Justice Robin Davis’s quick (and cynically partisan) resignation immediately after the state House of Delegates impeached her this week.