Progressives win the LaSalle battle, but at what cost?

Last week, the progressives in New York’s General Assembly effectively killed the nomination of Justice Hector LaSalle to be the Chief Justice of the New York Court of Appeals. As I have documented previously, the opposition had nothing to do with LaSalle’s qualifications or experience, but rather a ginned-up power play over Governor Kathy Hochul. In doing so, they prevented LaSalle from becoming the first Hispanic Chief Judge of the high court.

Identity sure seems to matter to progressives — until it doesn’t.

More broadly, Albany’s progressives are joyfully gutting a coequal branch of government in order to engage in an intramural fight with the governor. The Court of Appeals, in need of a Chief Justice for months, remains without an administrative leader. And the entire state court system has been deprived of leadership with respect to their everyday work.

All New Yorkers should be outraged on this assault on their judiciary. The consequences will become evident soon enough.

Supreme Court leak investigation ends with no culprit identified

Portico_-US_Supreme_Court_Building

The full statement from the Court, with the Marshal’s report and an additional statement from Michael Chertoff (as an independent analyst for the Court), can be found here. The key takeaway: “the [Marshal’s] team has to date been unable to identify a person responsible [for the leak] by a preponderance of the evidence.”

Preponderance of the evidence is, of course, the lowest standard of proof, equivalent to a likelihood of just over 50 percent. The failure of the investigation to identify any specific person under the preponderance standard is a clear signal that the Court does not ever expect to find the perpetrator.

This meek result is almost as stunning as the leak itself. And it carries several important consequences:

    • The Supreme Court’s reputation takes another hit. Leave aside the cynical partisan attacks based on one or two case outcomes. The Court itself has too many self-inflicted wounds in recent years: its refusal to adopt a Code of Ethics, its refusal to broadcast video of its arguments, and so on. Increasingly, the Supreme Court looks like a 19th century institution that has been uncomfortably transported to the 21st century. The failure to find the source of the leak makes the entire institution look inept.
    • Other court systems will suffer reputational fallout as well. Most people do not carefully distinguish between the Supreme Court and other courts or court systems in their daily lives.  Just as a strong reputation for the apex court will have benefits for other courts downstream, a reputational blow to the nation’s highest court will have the public thinking a bit more dismally about court systems in their own localities as well.
    • The Supreme Court will necessarily be a less open place to work. The Marshal’s report recommended–and former Secretary Chertoff endorsed–a number of measures to assure that a leak like this does not happen again. Many of these recommendations involving restricting access to draft opinions and other key documents, and instituting greater confidentiality measures. Fewer people will see drafts, and fewer opportunities will be available for reflection. There will still be prestige in clerking or otherwise staffing at the Supreme Court, but one has to wonder whether some qualified candidates will pass on the opportunity if it means giving up one’s cell phone when walking into the building and knowing that someone is always looking over your shoulder.
    • The Court will have to contend with an internal culture of distrust, at least for the foreseeable future. Just as potential law clerks and staff will bristle at being watched more closely, the Justices themselves will ask whether it’s worth bringing in so many unproven people for a year or two. The increased security will also necessarily make it harder for Justices to hammer out issues among themselves, whether directly or through law clerks as intermediaries.
    • The Court is likely to become even more resistant to sensible transparency proposals. As this blog has routinely documented, both legislators and the general public have put forward a variety of proposals to make the Supreme Court’s work more transparent and accessible. These proposals include better recusal practices and livestreaming oral arguments. But now that the Court is feeling on the defensive, it seems highly unlikely that it will voluntarily accede to transparency measures. This doesn’t mean that transparency measures are not coming eventually–I am confident that they are–but only that the Court will try to delay introducing them until it feels overwhelming pressure to do so.

New Jersey courts struggle with judicial vacancies

New Jersey’s court system currently has 65 judicial vacancies, leading one lawmaker to propose raising the state’s mandatory retirement age for judges in order keep exising jurists on the bench.

Like many states, New Jersey currently requires its judges to retire at age 70. But a mandatory retirement system presumes that the state will quickly fill judicial seats as they become vacant. In fact, both Governor Phil Murphy and the state legislature have been slow to act on existing vacancies, creating a crisis so significant that nearly eighty retired judges have been temporarily called back into service to help clear the caseload backlog.

State Senator Shirley Turner is proposing raising the mandatory judicial retirement age to 75. It is a stopgap measure, to be sure. The only way to solve the crisis is for the other branches of state government to take their nomination and confirmation responsibilities seriously.

The situation in New Jersey perfectly illustrates the resource challenges that court systems must navigate in the 2020s. The heightened politicization of every aspect of American life has led the executive and legislative branches to treat each judicial vacancy as an zero-sum partisan event. (See the current kerfuffle in New York.) Meanwhile the courts, unable to secure the human resources they need to address their dockets and unable to control the flow of cases into the system, have to resort to recalls and other strategies to keep up with their workload. No wonder public confidence in every branch of government is in decline.

Florida Bar issues report on access to legal services

The Florida Bar has sent a report to the state supreme court with suggestions for improving public access to legal services. According to the Bar’s press release, the suggestions include the creation of a permanent committee to address issues concerning self-represented litigants, increasing legal aid funding, expanding pro bono services, and lowering bars for legal interns to help represent clients.

Each of these suggestions, and many others like them, recognize the crisis of access to justice, which is especially acute in state court systems. And all of them are good ideas. But unsurprisingly, the suggestions are also deliberately crafted to preserve the special role of attorneys as gatekeepers to the legal system. Indeed, the press release itself mentions that last year the Bar pushed back against a much broader set of proposals, coming from the court system itself, which would have (among other things) tested non-lawyer ownership of firms and sought an expanded role for paralegals.

So this a turf war of sorts, but a constructive one. Access to justice is a real problem. Courts must recognize that attorneys will not readily cede their special role as intermediaries between the courts and the public, and attorneys must recognize that the public’s need for affordable and reliable court services far exceeds the ability of the bar to provide it. Much like the field of health care, where the model that predominated for decades is being upended to fit the needs of a modern society, so too the field of legal services is being upended. My sense is that changes are coming quickly, so it’s important that all stakeholders contribute to the conversation now.

New York’s Chief Judge resigns amid ethics probe

Janet DiFiore, the Chief Judge of the New York Court of Appeals, announced yesterday that she will resign effective August 31 of this year. Chief Judge DiFiore leaves with more than two years remaining on her term. She served not only as the chief of New York’s top court, but also as the chief administrator for the state’s sprawling (and often byzantine) court system.

The timing is certainly curious. DiFiore did not specify why she was leaving, other than to vaguely refer to “the next chapter in life.” Speculation is high that her resignation was influenced by a pending ethics probe, in which she is alleged to have attempted to influence a disciplinary action against a former court employee.

Governor Kathy Hochul will appoint DiFiore’s successor.

New research on the internal dynamics of court rulemaking

Amending a Federal Rule of Civil Procedure is an act of intricate teamwork. Finally, some evidence of just how intricate.

Since 1934, the federal court system has been empowered to craft its own rules of procedure and evidence. That work is primarily done by five Advisory Committees, each composed of judges, attorneys, and law professors, who review the existing rules and periodically make recommendations to amend or update them.

FRCPNo rule proposal makes everyone happy, and academics in particular often critique the rule changes that the Committees take up (or fail to take up). But in recent years, that criticism has shifted from the substance of the Committees’ work to the composition of the Committees themselves. In particular, academic critics are increasingly content to assert, without any rigorous evidence, that the makeup of the Committees leaves them prone to engage in groupthink or other cognitive biases.

Are those allegations supported by a careful review of the Committees’ work? A rigorous, four-year case study says no. In fact, far from being entities mired in groupthink, the Committees are more akin to expert teams whose decisions are carefully researched and thoroughly considered.

Continue reading “New research on the internal dynamics of court rulemaking”

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually  dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal. 

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function. 

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

CBO puts $43 million price tag on federal courtroom cameras

The Congressional Budget Office (CBO) has issued its estimate of the cost for implementing S. 818, the Sunshine in the Courtroom Act of 2021. That bill would authorize federal judges to record and broadcast court proceedings as long as doing so would not violate the parties’ due process rights. The authorization would last for three years.

Recognizing that the vast majority of federal judges would likely decline the bill’s invitation to record proceedings, the CBO estimates that only 10% of courtrooms nationwide (about 200 courtrooms total) would be fitted with modern video equipment. Still, the CBO expects that it will cost about $75,000 to set up each courtroom, and another $50,000 annually to administer the program. In all, a rough estimate of $43 million would have to be expended between now and 2026, when the program would automatically sunset.

Forty-three million dollars is a staggering number to most people, especially since ordinary video recording technology is now relatively cheap and accessible. To be sure, there are security and privacy issues, but wow, that’s a lot of money for a program that doesn’t even have staying power.*

* Of course, the federal government once spent $100 million on unused plane tickets in a six-year stretch, so your perceptions may vary.

Two federal bankruptcy courts move to combat forum shopping

Mayer Brown’s blog, Real Bankruptcy Intel, explains:

Following the controversy surrounding Purdue[‘s careful filing of a bankruptcy petition designed to land specifically with Judge Robert Drain], as well as a lull in filings nationwide, in November, the SDNY elected to adopt a random case assignment system. Specifically, subdivision (f) of Local Bankruptcy Rule 1073-1 now states:

    1. Mega Chapter 11 Cases. Notwithstanding subdivision (a) of this rule, the Clerk shall assign a mega chapter 11 case to a Judge in the District by random selection irrespective of the courthouse in which the case is filed. A chapter 11 case qualifies as a mega chapter 11 case if the assets or liabilities of the debtor are equal to or greater than $100 million. A multi-debtor chapter 11 case qualifies as a mega chapter 11 case if the cumulative assets or cumulative liabilities of the filing debtors are equal to or greater than $100 million.[5]

Therefore, as of December 1, cases filed in the SDNY are to be assigned on a random basis to judges irrespective of the courthouse in which they are filed. As part of this rule, any SDNY judge can preside over a case in a courthouse where he or she is not usually assigned. Chief Judge Cecelia G. Morris explained that she hopes the adoption of this system will result in a more balanced utilization of judicial resources.[6] Judge Drain himself also commented that he “supported the change unanimously.”[7] Such adaptation now places the SDNY on par with the District of Delaware—another longstanding hotspot for mega chapter 11 cases—which already had a random assignment system in place. This move is likely to prevent debtors from “judge shopping” within the district.

Within a month of the SDNY’s announcement, the Bankruptcy Court for the Eastern District of Virginia (the district that contains Richmond and Alexandria) also implemented a similar rule.[8]