Ohio Democrats to Democratic judge: Don’t run for chief justice; you could win!

The perverse nature of choosing judges through partisan elections is currently on display in Ohio, where some Democrats see no benefit to a highly qualified member of their own party running for chief justice.

The state’s current chief justice, Maureen O’Connor, is retiring in 2022, and two associate justices of the state supreme court, Patrick DeWine and Jennifer Brunner, are considering running for the open seat. In Ohio, where judges must run in partisan primaries, their party affiliation is well-known. DeWine is a Republican and Brunner is a Democrat. The retiring O’Connor is also a Republican.

Justice Brunner may well make an excellent chief, and she is certainly saying all the right things about serving the people of Ohio. But to some Democratic bean-counters, a Brunner victory only has potential downside.

Here’s why: If Brunner becomes chief justice, her current seat in the state supreme court could be filled by Governor Mike DeWine.* DeWine, a Republican, would presumably appoint a Republican judge to that seat, meaning no net gain on the court for the Democrats. Moreover, if Brunner becomes chief justice, she will only be able to serve one full six-year term before hitting the mandatory retirement age, meaning that she would have to step down from the court after the 2028 election. If she remained in her current position, however, she could in theory stay on the court until 2032.

If you subscribe to the view that judges are simply legislators in robes, maintaining a certain number of (D)s and (R)s on the court is more important than each judge’s skill, integrity, experience, and temperament. But if you view judges as actual people with professional pride and commitments to excellence, treating them as fungible back-benchers is both inaccurate and insulting.

I have no view about who would make the best chief justice for Ohio. But I do know that it has little to do with a forced party affiliation, and much more to do with people skills, administrative capacity, ambition, effort, intelligence, and drive. I hope that Ohioans agree.

* Yes, Mike DeWine is related to Justice Brunner’s opponent, Patrick DeWine. They are father and son, respectively.

The disconnect between what Americans want in their judges and how they choose them

Professor Herbert Kritzer has a very interesting new article in Judicature, exploring the qualities Americans say they want in their state judges. It turns out that professional qualities like reputation for integrity and respect from leaders of the legal community are heavily desired, while political qualities like running for holding office or respect from party leaders is much less desired.

So then why do so many states still choose their judges through partisan, or at least politically influenced, elections? I offer a few thoughts at the IAALS Blog.

Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

States reprimand judges and judicial candidates for electoral improprieties

Judges in Florida and Ohio separately received public reprimands from their state supreme courts this week for interfering with judicial elections during the 2020 campaign.

In Florida, Judge Richard Howard received a reprimand for trying to discourage a lawyer from challenging a sitting judge during a local election, and instead urging the lawyer to challenge a different judge. While Judge Howard did not make the statements public, the state supreme court found that his actions “failed to promote public confidence in the impartiality of the judiciary,” among other things.

In Ohio, Karen Falter, a candidate for a trial court seat in Hamilton County, was reprimanded for mailing campaign literature falsely accusing her opponent (then the incumbent) of moving into the county only three years earlier in order to take a judicial appointment. The state supreme court affirmed the reprimand, concluding that the truth about the opponent’s residency was easily verifiable and that making the false statement amounted to at least a reckless disregard of the truth.

Public reprimands are a significant form of attorney and judicial discipline. While the attorney may continue to practice and the judge may remain on the bench, the reprimand and the reasons therefor become part of the public record.

Direct elections are a troublesome way to choose judges, but as long as states require them, candidates need to comport their electoral behavior to preserve public confidence in the judiciary.

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

What should we expect of Biden when it comes to the judiciary?

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”

West Virginia governor will appoint the judge who will rule in his case

A strange development in West Virginia. State judge Charles King passed away last month, and Governor Jim Justice is charged with appointing his replacement. Interviews will be taking place this week. At the time of his death, Judge King was presiding over a lawsuit in which the Governor was the defendant. The new appointee will take the reins of that suit. Put differently, the Governor will literally be picking the judge in his own case.

While it is common for governors to temporarily fill vacant seats on the bench so that the courts remain at full strength, this situation is plainly awkward. It is all the more so because of the efforts in the mid-2000s of Massey Coal Company to heavily finance the election of Brent Benjamin to the state supreme court; Benjamin would later cast the deciding vote in Massey’s favor in a major case pending before that court.

Governor Justice must carry out his appointment responsibilities, but he would be well-served by including extra transparency in the process — for his sake, the new judge’s sake, and the sake of long-term public confidence in the state judiciary.

More on the Pennsylvania plan to create partisan judicial elections by district

I was pleased to weigh in this week on the proposed Pennsylvania legislation that would shift partisan elections for its state supreme court from a statewide ballot to a regional one. (More on the proposal here and here.) As the Spotlight PA article suggests, my concern is not with creating geographic districts, but rather with the potentially explosive mix of districts and partisan races. That combination seems to me to especially invite special interest and dark money, similar to the notorious 2004 supreme court election in Illinois.

Interestingly enough, South Carolina is also considering a move to expand and diversity the geographic perspective of its supreme court, which is chosen entirely by the legislature. We’ll continue to follow both proposals here.

Colorado’s Chief Justice on court operations, judicial selection, and experiential diversity

The Colorado Springs Gazette has a terrific short interview with the state’s Chief Justice, Brian Boatright, on a wide variety of issues related to court operations and interdependence. Here is a taste:

[Q]: Is there any change during the COVID-19 era that you believe the Supreme Court couls permanently incorporate into its work post-pandemic?

Boatright: I believe that we will incorporate the practice of allowing attorneys to make oral argument remotely in certain circumstances. The pandemic has taught us that oral arguments can be efficient and effective wheh done virtually. I expect that attorneys who previously has to travel significant distances to present their arguments will want to take advantage of that option. Hopefully, that flexibility will reduce costs for their clients.

Chief Justice Boatright also discusses experiential diversity on the court, the role of collegiality, and the benefits of Colorado’s judicial selection system. It’s well worth a full read.