Judge Larsen on State Courts in a Federal System

Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.

The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.

Continue reading “Judge Larsen on State Courts in a Federal System”

Longest federal judicial vacancy gets another nominee

A seat on the U.S. District Court for the Eastern District of North Carolina, which has been vacant for nearly fourteen years, may finally be filled after President Trump nominated UNC law professor Richard E. Myers II for the position on Wednesday.

The vacancy, which has been in place since the end of 2005, is a testament to the dereliction of constitutional duties by both the executive and legislative branches. George W. Bush originally nominated attorney Thomas Farr to the seat, but Senate Democrats twice blocked the nomination. President Obama then offered two different nominees for the same seat during his eight years in office, only to have both nominations blocked by home-state Republicans. President Trump renominated Farr to the seat in 2017, but no vote ever came to the Senate floor.

Partisans will surely argue that each of the opposing party’s nominees was unacceptable, and that North Carolinians are better off with no judge than with a bad one. But tell that to the people who have had to wait longer for their cases to resolve.

Good luck to Professor Myers, who deserves better treatment than previous nominees and at least a speedy and fair up-or-down vote.

Final arguments conclude in NAACP’s challenge to Alabama’s judicial elections

The slow-moving federal court challenge to Alabama’s method of electing its appellate judges reached another milestone on Wednesday, when the parties gave their final arguments in a case filed back in 2016.

The Alabama State Conference of the NAACP is arguing that the Alabama’s method of at-large voting for state appellate courts impermissibly dilutes the votes of African-American voters, in violation of the federal Voting Rights Act. As evidence, the plaintiffs point to the fact that no black candidate has ever been elected to the state’s civil or criminal appellate courts, and only two have been elected to the state supreme court. The state has countered that standard party politics, not race, provides the best explanation for the election outcomes.

A federal judge denied the state’s motion to dismiss the case, and held a bench trial last November. After a lengthy delay brought on by the state’s appeal to the Eleventh Circuit on the denial of the motion to dismiss, the trial court held oral arguments to conclude the bench trial this week.

There is no indication when the judge will issue his decision. But whatever his final ruling, this case is a nice example of how life tenure shields him from some of the inevitable political fallout that will result from any decision he makes. If only his counterparts on the state bench enjoyed that same freedom from political pressure. But as both sides in the case made clear on Wednesday, viewing judges as politicians seems to be par for the course in Alabama.

No vacancies, but a docket crisis nonetheless

I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.

Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.

Feeling the squeeze, New Jersey’s federal court may borrow judges from Pennsylvania

I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.

Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.

The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.

New Jersey federal judges speak out on vacancy crisis

The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.

Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.

While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.

“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”

There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.

As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.

Is the Supreme Court rethinking the federal courts’ mission?

My latest piece for the New England Law Professors blog takes a look at the Supreme Court’s recent decision in Home Depot, Inc. v. Jackson, and asks whether the Court is quietly reevaluating the mission of the federal court system.

Give it a read, and while you’re there, check out the wonderful posts by my colleagues in areas as widespread as criminal law, immigration law, and constitutional law.