Category: court administration

Senate passes bill to improve security for state judges

The Senate has unanimously passed the Countering Threats and Attacks on Our Judges Act, a bipartisan bill to provide additional security measures for state judges. The bill would establish a State Judicial Threat Intelligence and Resource Center, to be housed within the State Judicial Institute, which would provide technical assistance, training, and threat monitoring for state and local judges and court personnel.

The bill is supported by many key players, including the National Center for State Courts, the Conference of Chief Justices, the American Judges Association, and the National Association for Court Management. The bill now moves to the House for further consideration.

 

Televising the Trump trials

Last week, a number of Congressional Democrats wrote a letter requesting that the Judicial Conference of the United States make an exception from its longstanding policy of not televising federal criminal trials. The reason for the exception: the defendant is one Donald Trump, and Americans have a right to see the criminal proceedings against him in their full glory.

I spoke to several media outlets (including the Washington Post and NPR) about the prospect of a televised trial. A few additional thoughts follow. Continue reading “Televising the Trump trials”

State courts face staffing crisis

Pandemic shutdowns, “quiet quitting,” and other strains on workplace productivity have become increasingly common over the past few years. The courts are no exception. Law360 has a detailed article on the staffing issues that are affecting state court systems around the country. The article is paywalled, but here is a taste:

In many parts of the country, state court leaders are again raising the alarm about retirements, COVID-related resignations and a tight job market that is luring valuable staff members away. All the empty seats, along with an influx of less-experienced new hires, are slowing the gears of justice and threatening key court functions, from front-door security checks to final case filings at the clerk’s office.

Behind the scenes, administrators are scrambling, pressing lawmakers for more money to juice salaries and identify new recruiting channels, said Danielle Hirsch, managing director at the National Center for State Courts.

“In many courts around the country, vacancies are reaching crisis levels,” Hirsch told Law360 Pulse, referring to a gap between private-sector pay and salaries paid by state courts and other government employers.

“Recruiting and retaining talent is essential, and many courts are embarking on everything from working with state legislators, executive branch agencies and county boards on salaries to identifying new channels for recruiting staff,” she said.

It is probably to soon to say how this will shake out, but if staffing woes continue, it would not be surprising to see court systems start to turn to AI and other technologies to help with the workload.

Federal courts contemplate simulating cybersecurity breach

The Administrative Office of the U.S. Courts is soliciting entities which can help run a simulated cybersecurity breach. The goal is to “identify levels of risk that may not be immediately apparent.” A sensible strategy, given the importance of security within the court system and its own historic vulnerability to attack.

North Dakota judges seek pay raise

North Dakota’s judiciary is seeking a 35% pay raise, phased in over two years. The state currently ranks 40th in judicial salary.

Many of the arguments are familiar: judges are already paid lower than many other state employees, they do not receive ordinary and consistent pay increases, and judicial work is difficult and sometimes isolating or dangerous. But proponents of the pay hike are advancing another, less common, argument: that a pay raise is needed to attract private litigators to the judiciary. Most applicants for judicial positions are prosecutors and criminal defense lawyers, for whom a judgeship represents a bump in salary as well as prestige. For successful civil litigators, by contrast, moving to the judiciary frequently involves a substantial pay cut, making the job less attractive.

An experientially diverse judiciary is essential for the administration of justice. And while raising salaries may not be enought to assure a proper experiential balance, it is indeed a meaningful consideration.

Indiana proposes to double jurors’ pay

A bill working its way through the Indiana legislature would double jurors’ pay from $40 to $80 per day. The move — which would be funded by increased court fees — would make the state’s jury pay one of the highest in the country.

Indiana, like all states, has struggled for years with getting adequate numbers of jurors, and adequate cross-sections of the community, in place for trials. The hope is that increasing the daily pay to the still very modest amount of $80 would make jury service economically feasible for more citizens. 

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.