The Interdependent Third Branch
Tracking court organization, administration, structure, and strategy
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.
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.
I missed the press release from late July, but it’s worth noting that John Cooke, currently the Deputy Director of the Federal Judicial Center, will be promoted to be the Center’s eleventh director next month. He will replace Judge Jeremy Fogel, who is leaving the FJC to lead the new Berkeley Judicial Institute.
From the press release:
John Cooke joined the Federal Judicial Center in 1998 as its director of judicial education programs, and he later headed the Center’s Education Division. The Board selected Mr. Cooke as Deputy Director in 2005. Before his 20-year career at the Center, Mr. Cooke was a commissioned officer in the United States Judge Advocate General’s Corps, achieving the rank of brigadier general. In the course of his military career, he served as the Chief Judge of the U.S. Army Court of Criminal Appeals, the Judge Advocate for the U.S. Army in Europe, Academic Director of the Judge Advocate General’s School, and as a military trial judge. Mr. Cooke received a B.A. degree from Carleton College, a J.D. from the University of Southern California, and an LL.M degree from the University of Virginia.
Best wishes to the new Director!
One persistent theme on this blog is that courts are entirely dependent on other entities for their judicial staffing, and must scramble when those entities are not responsive to those staffing needs. This article offers yet another data point, discussing the ongoing federal judicial vacancies in Nevada, and the concomitant growth of the federal caseload in that jurisdiction.
In what has become almost an annual rite, a member of Congress has introduced a bill to split the Ninth Circuit Court of Appeals into two. The new bill (S. 3259), proposed by Alaska Senator Dan Sullivan, would also add 57 new judgeships around the country, and would additionally give permanent status to eight existing temporary judgeships.
Senator Sullivan explained:
“In 1970, Chief Justice Warren Burger warned that ‘a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people,’ and cautioned that inefficiency and delay in our courts of appeals could destroy that confidence. Unfortunately, as it is currently constituted, the Ninth Circuit Court is inefficient, it delays, and therefore denies justice for millions of Americans. We cannot allow the confidence in our system of justice to be undermined by continuing a court of appeals that is so large and so unwieldy.”
The efficiency concerns are real, but this bill is probably going nowhere.
Reaction from Senate Republicans on Senator Jeff Flake’s plan to hold up judicial nominations until Congress acts on tariff and trade issues has been respectful but wary, according to this piece in The Weekly Standard:
Although some of Flake’s colleagues have similar convictions concerning Trump’s use of tariffs, they say they won’t go so far as to block Trump’s appointees.
“I am not holding up judicial nominees for that purpose,” Pennsylvania Republican Pat Toomey told reporters on Monday night.
Toomey is a co-sponsor of a measure originally introduced by Bob Corker that would subject tariffs imposed under national security claims through Section 232 of the Trade Expansion Act to congressional approval. Trump has angered close trading partners (and Republicans on Capitol Hill, for that matter) by using that authority to impose tariffs of 25 percent and 10 percent on foreign steel and aluminum. The White House intends to use it again to impose tariffs of 25 percent on imported automobiles.
Toomey and Flake agree that Trump’s license to implement such duties without congressional approval should be revoked. And Toomey said on Monday night that getting a vote on the trade bill is “very important to me” — but so is confirming Trump’s judicial nominees. And Wisconsin Republican Ron Johnson, another co-sponsor of the Corker bill, said that he would love to see Congress reclaim its Article I constitutional authority over tariffs, but that he wasn’t insisting it happen “at exactly this moment in time.”
“I’d prefer he not do it,” Johnson said of Flake’s strategy of targeting Trump’s judicial nominees. “We need to confirm judges.”
Corker himself appeared wary of the notion. “We’re trying to pass the amendment in a normal way,” Corker shouted through the glass of a Senate subway car as the train propelled him away from a gaggle of reporters on Monday night.
Judiciary Chairman Chuck Grassley said on Monday night that he hadn’t spoken to Flake about the issue. “I’m interested in moving these judges, but I also have respect for what [Flake] wants to do,” Grassley told reporters. Senate Majority Whip John Cornyn said he would prefer to advance trade legislation through the Finance Committee, which has primary jurisdiction over the issue. Still, Cornyn didn’t appear completely opposed to the concept of curtailing Trump’s ability to unilaterally impose the Section 232 tariffs.
Senator Jeff Flake (R-AZ), one of the most prominent Republican critics of President Trump, has stated that he “and a few other senators” plan not to vote on any more federal judicial nominations until Congress acts on other issues:
“I do think that unless we can actually do something other than just approving the president’s executive calendar, his nominees, judges, that we have no reason to be there,” Flake said. “So, I think myself and a number of senators, at least a few of us will stand up and say let’s not move any more judges until we get a vote for example on tariffs.”
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“The Senate ought to bring legislation to the floor that says hey, we’re going to push back here,” Flake said. “The European Union exporting cars to the U.S. does not represent a national security threat.”
Senator Flake is right about the need for Congress to step up and do its job in a rigorous and thoughtful manner. But it’s a damning indictment of that body that it cannot simultaneously govern the country and approve judicial nominees. Meanwhile, the federal court system continues to operate with many fewer judges than it believes necessary to do its work properly.
I have praised Jeffrey Rosen’s new biography of William Howard Taft on this blog before. It is a lucidly framed and highly readable look into the life of the only man ever to serve as both President and Chief Justice.
My longer review of Rosen’s book has now been published on JOTWELL. Enjoy!
Last week, Senator Charles Grassley promised to hold a hearing on the federal courts’ response to workplace harassment, which culminated in a working group report. The Washington Post reports on that hearing here.
From the story:
Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Judiciary Committee, said in her opening statement that she was troubled by some aspects of the report.
“I’m also concerned that the working group’s report didn’t quantify the prevalence of sexual harassment in the judiciary and instead relied on previous EEOC data,” said Feinstein, using an acronym for the Equal Employment Opportunity Commission.
Grassley said in an interview that the report seemed like a way to “create the appearance of caring” while leaving “employees of the judicial branch without a vehicle for reporting abuses.”
The Iowa Republican said he would like to see an independent watchdog for the judiciary that could take and investigate reports of harassment. While Congress could theoretically get involved with legislation, he said, that might be difficult to accomplish in practice.
This week, the Federal Judiciary Workplace Conduct Working Group released its report and recommendations, which covered a range of workplace conduct including sexual harassment.
Senator Chuck Grassley is not impressed with the final report, stating that “The report lacked very serious proposals and, in a sense, just kind of kicked the can down the road.” He wants Congressional hearings on the matter.
Stay tuned.
The Interdependent Third Branch 