Category: federal courts

How coronavirus is affecting the courts

A roundup of stories concerning the impact of the coronavirus pandemic on state and federal courts:

As coronavirus spreads, some courts shutter, others carry on

DOJ reverses course, tells immigration judges to post CDC posters about coronavirus pandemic

Virus’s Spread Has Courts Bracing for Quarantine Fights

With Threat of Coronavirus Looming, Eleventh Circuit Cancels Judicial Conference

Cook County Justice System Responds to Coronavirus Outbtreak

State and federal courts in Michigan respond to COVID-19 threat

Northern Ohio federal courts take steps to prevent coronavirus spread, though most operations continue as normal

Coughing jurors in coronavirus era will worsen delays for US trials

Virus Complicates Jury Trials as Courts Seek to Limit Spread

Vermont state courts may postpone trials

All jury trials postponed in federal courts in Seattle and Tacoma

Meanwhile, on an optimistic note, the federal Committee on Rules of Practice and Procedure (the “Standing Committee”) announced yesterday that it plans to hold its regular June meeting. Hopefully we’re all back to regular operations well before then.

Stay safe and healthy, everyone.

 

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

Federal courts develop coronavirus plan

As they have in other times of public emergency, the United States Courts have devised a plan to address operations in the event of a more widespread coronavirus outbreak. Many of the precautions are sensible and consistent with approaches taken by other public and private sector organizations:

[Administrator James] Duff suggested that federal courts “at a minimum” coordinate with human resources about “social distancing practices,” such as “teleworking, staying home when sick, and separation of potentially ill staff from others within the workplace.”

The memo also urged courts to emphasize good respiratory etiquette and hand-washing practices and ensure routine, regular cleaning of all frequently touched surfaces in the workplace.

Courts should also be “implementing continuity procedures, issuance of applicable orders, and other measures as necessary to ensure the continuation of necessary court functions,” Duff’s memo states.

Judge finds a First Amendment right to access civil complaints without delay

A federal judge in Virginia has concluded that there is a qualified right to review state court civil complaints immediately after they are filed. The judge’s ruling came after the Courthouse News Service sued Virginia state court officials, alleging that court clerks in two counties were instructed not to provide access to new complaints until the documents had been scanned and uploaded to a public access terminal.

The federal court declined to issue an injunction in the case, noting that state court officials appeared to be trying to comply with their obligations in good faith. The court required the parties to appear for a joint status conference in August to discuss the level of access provided by the defendants.

There is always a certain tension between the public’s right to know about civil cases brought in its court system, and respect for private litigants. But there is no question that the right balance here falls in favor of First Amendment rights. Litigants are free to seek orders that seal or otherwise protect their court filings in appropriate circumstances.

A transparent media attempt to politicize judicial resources

As it does every year, the Administrative Office of the U.S. Courts has propounded a budget request to Congress for the upcoming fiscal year. The new request seeks a 4.4% increase in the overall judicial budget, with the money helping to cover Congressionally approved judicial pay raises, updating older facilities, and implementing federal legislation concerning the courts. More money is also needed for base salaries because many federal judicial vacancies — especially at the district court level — have been filled over the past year.

But that didn’t stop the reporters and editors at Bloomberg Law from telling us what the increase is really about: Donald Trump. In a story titled, Judiciary Requests More Money for Trump Judges, Bloomberg asserts:

President Donald Trump’s judicial appointments are among the factors contributing to the federal judiciary’s request to Congress for a 4.4% increase in its budget.

Trump has moved aggressively to fill the federal judiciary with conservatives. So far, that’s resulted in 188 judicial appointees to federal district and appeals courts, and two justices on the Supreme Court: Brett Kavanaugh and Neil Gorsuch.

The judiciary’s requested funding boost for the next fiscal year takes into account money needed to provide salary and benefits for a higher-than-expected volume of judges confirmed and their chambers staff, a judiciary spokesman said.

This is remarkably lazy writing and editing. The headline is slanted — the money is for the workings of the entire judiciary, not just “Trump Judges” — and the opening grafs suggest that there is something unseemly about the President and Senate fulfilling their constitutional roles to populate the judiciary.

There is probably little practical harm that will come out of this sloppy article, but the public — and the courts — deserve better.

Chief Justice makes new appointments to the Executive Committee of the Judicial Conference

Judge Claire Eagan (N.D. Okla.) is the new Chair, replacing Judge Merrick Garland. Judge Lavenski Smith (8th Circuit) also joins the Committee as a new member.

More on the Executive Committee here.

McConnell gives “golden gavel” to John Roberts after impeachment trial

After the close of the impeachment trial of President Trump this week, Senate Majority Leader Mitch McConnell presented Chief Justice John Roberts with a “golden gavel.” The token is ordinarily presented to Senators who have sat in the presiding chair for 100 hours. Roberts certainly filled that minimal qualification during his many hours presiding over the trial.

I recently took Elizabeth Warren to task for her trial question that crassly challenged the legitimacy of Roberts and the Supreme Court. McConnell’s presentation can be seen as only a slightly more subtle effort to politicize the Chief Justice for partisan gain. True, Roberts did yeoman’s work in presiding over the trial, all the while maintaining his busy day job (which only involves hearing oral arguments, writing opinions, navigating the personalities and needs of his fellow Justices, and managing an entire branch of the federal government). And in a different era, the presentation of the golden gavel might be properly viewed as a sincere token of appreciation. In this deeply partisan environment, however, it primarily exploits the Chief Justice’s participation to court favor with Republicans — a misappropriation of judicial goodwill for partisan gain.

 

 

“Myths and Realities” about Trump’s judicial appointments

Many politicians, advocacy groups, and journalists have written about President Trump’s federal judicial appointments over his first three years, with the dominant narrative being that he has transformed the judiciary by appointing more judges, with more far-right leaning ideologies, than any President in history.

Russell Wheeler looks at the data underlying these assertions, and finds the story to be much more nuanced. As with everything Russell writes, the post is worth an immediate and careful read.

Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea

The Wall Street Journal reports today (through a staff editorial) that the Judicial Conference of the United States is considering banning federal judges from affiliating with either the libertarian/conservative leaning Federalist Society or its left-leaning counterpart, the American Constitution Society (ACS). The proposed ban comes out of one of the Judicial Conference committees, the Committee on Codes of Conduct, which addresses issues of federal judicial ethics.

According to the editorial, the current draft of the proposal states, in part:

“In sum, the Committee advises that formal affiliation with the ACS or the Federalist Society, whether as a member or in a leadership role, is inconsistent with Canons 1, 2, 4, and 5 of the Code [of Conduct for United States Judges]…”

“Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

Given the ongoing efforts of both major political parties to politicize the judiciary, it’s not hard to see why the Committee is sensitive to the organizational affiliations of its judges. But this idea (assuming it is being correctly reported) is both impractical and unwarranted, for at least five reasons. Continue reading “Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea”

Seeking a more muscular judiciary

I have a new op-ed up at The Hill, urging the judiciary to be more outspoken about the rule of law and the role of courts in our society. A snippet:

The courts today could use a healthy dose of [John Jay’s] swashbuckling spirit. They are uniquely situated to reaffirm our core legal values in the public sphere, and to reassert their position as an equal branch of government. This is not to say that the courts should willingly inject themselves into partisan debates. Not every political exercise is a partisan one, however, and the courts are well within their institutional role to remind the other branches, the media, and the public of our shared and cherished legal tradition, and to take appropriate measures to ensure it remains intact.

Please read the whole thing!