(Even more) corruption of the judiciary in New York City

The New York Times periodically turns over the rock known as judicial selection in the Big Apple, and lo and behold, the nasty little critters underneath always seem to be thriving. This time it’s a story on corruption in the Bronx, where a Democratic party boss seems to have punished a local judge for refusing to hire his hand-picked crony as a “confidential assistant.”

What a colossal embarrassment. Why do New Yorkers tolerate this?

 

The most pointless judicial election ever?

One candidate was declared ineligible. The votes were counted anyway. But to what end?

A remarkable story from Alabama. Last fall, prosecutor Linda Hall won the Democratic primary for a seat on the Jefferson County Circuit Court located in Birmingham. But before the general election, her primary opponent challenged her victory, alleging that Hall did not meet the state’s requirement that judicial candidates live in the circuit for at least 12 months before the election.

The court agreed, and held that Hall was ineligible to run in the general election. But the ballots had already been printed, so the primary challenger was left out in the cold. Moreover, the court declared that the votes in the general election must still be counted. Despite her ineligiblity, Hall handily defeated the Republican incumbent, Teresa Pulliam, by 16,000 votes in November.

Unsurprisingly, Hall’s electoral victory brought a new round of litigation, this time by two Jefferson County voters who challenged Hall’s fulfillment of the residency requirement. In a trial in late 2018, Hall testified that over the previous 12 months she had lived in four different apartments in the Birmingham area, as well as a number of extended stay hotels in St. Louis, Missouri. Hall explained that she had to keep moving apartments due to problems with mold, foul odors, and smoking neighbors. By early October — just weeks before the general election — she landed in her final apartment, which was actually located within Jefferson County.

After trial, Hall was again declared ineligible for the judgeship, and enjoined from taking the oath of office. This past week, the Alabama Supreme Court affirmed that decision without opinion.

So, to recap: a judicial candidate who was declared ineligible for office before the general election was nevertheless elected, and later barred from taking office. Three different courts had to get involved. And at the end of the day, the people of Birmigham County had an unfilled judicial seat. (In another twist, Hall’s opponent, Judge Pulliam, was quickly appointed to a different seat on a criminal court. So losing an election evidently isn’t much of a career killer.)

I suspect that there is much more behind this story, at least as to the motivations of those charged with putting judges on the Alabama bench. It isn’t much of a surprise that Judge Pulliam, a Republican, would be reappointed to another seat by the state’s Republican governor. Likewise, I suspect that Ms. Hall’s electoral victory was a product of party and identity politics. Hall is an African-American woman running as a Democrat in a city that is more than 70% African-American and which regularly elects Democrats to office. It is well-established that many (perhaps most) judicial voters have little knowledge of the candidates before them, and accordingly look for low-salience cues like party affiliation, race, gender, or last name to aid their decisions. If the system worked well, voters would have recognized that a vote for Hall was meaningless. But they voted for her in droves.

It may well be that given Alabama’s dark history of racial inequality, a pure appointment process for judges may not create sufficient public trust in the judiciary. Allowing communities to choose their own judges through elections may therefore be a necessary accommodation. But if we are to put judicial candidates before the voters, at least those candidates should be minimally qualified, and at least the voters should be minimally discerning.

 

 

Arkansas prosecutor under fire for collecting signatures for judicial run while trying a murder case

Arkansas prosecutor Stephanie Potter Barrett, who is seeking a seat on the state’s Court of Appeals, has come under criticism after it was revealed that her aunt was collecting signatures to get Barrett on the ballot inside the courthouse. More distressingly, at least one of the signatures favoring Barrett’s candidacy was from a juror seated in a murder trial which Barrett was prosecuting.

Barrett insists that she did nothing wrong; she did not collect the signatures herself, and she argues that the courthouse is a public space at which collection of signatures is permitted. But others are not so sure: several ethics experts pointed out that judges cannot use the courthouse to engage in political activity, and suggest that a judicial candidate should be equally restricted. The defendant in the murder trial is also seeking a mistrial based on the juror signature.

It is entirely possible that Barrett really believes that she has done nothing wrong. And it is also entirely possible that the juror who signed the petition knows nothing about Barrett, or even associated her petition with the individual prosecuting the case. (Some people will sign anything.) But the optics are terrible. The courthouse appears politicized, and the fairness of the murder conviction is in doubt.

Reasonable people may differ over the propriety of choosing judges through a direct election. But elections open the door to these kinds of stories, and these kinds of stories erode public confidence in the judiciary and the administration of justice itself.

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.

On the politics of judicial identity

Two recent stories illustrate the slippery role that stereotypes and identity politics play in state judicial elections. In Louisiana, judicial candidate Ron Johnson appeared in campaign ads wearing his twin brother’s judicial robe and calling himself “Judge Johnson.” (His brother is a sitting judge.) Johnson admitted his mistake and accepted responsibility for it, but the intent was clearly to send the message that he was an incumbent judge — and probably to take advantage of the professional goodwill his brother had already amassed on the bench.

Elsewhere, Caroline Cohen defeated three other candidates for a seat on the civil court bench in Brooklyn’s 6th judicial district last Tuesday. But one of her opponents, Tehilah Berman, charges that Cohen — nee Caroline Piela — took her husband’s identifiably Jewish last name shortly before the election in order to attract Orthodox Jewish voters in the district. Cohen apparently also ran ads in Jewish publications with the Biblical injunction “Justice, Justice shall you pursue.” Berman, who finished last in the race, claims that Cohen deliberately presented herself as a devout Jew in order to draw in votes.

We have seen sketchy campaign behavior before, including judicial candidates cynically manipulating their names for electoral gain. Last year, an even more egregious example was set when Chicago lawyer Phillip Spiwack named changed his name to Shannon O’Malley on the theory that a female, Irish name would make him a shoo-in with Cook County voters. Sadly, it worked. In another recent incident, a Nevada judge seeking reelection photoshopped Dwayne “The Rock” Johnson alongside her in a print ad, even though he had never endorsed her candidacy.

But seeing these two most recent incidents side by side was particularly striking, because they both undermine public confidence in the judiciary, but in opposite directions. Ron Johnson’s impersonation of a sitting judge preyed on the positive stereotypes that voters associate with the judicial robe. As I explain in part here, citizens associate the generic judge with a high level of impartiality, dignity, and inherent sense of fairness.  When a judicial candidate dons the robe and is later found to have acted unethically, positive associations with the robe and the judiciary go down.

Caroline Cohen’s name switch (occurring as it did months before the election, and after 13 years of marriage) was arguably even worse, as it sought to take advantage of the modern identity politics that have been sown so dismayingly at the national level. Cohen was banking on Orthodox Jewish voters choosing “one of their own” at the polls, having done no other homework on the candidates or their qualities and qualifications. She turns out to have been correct in that assumption (and indeed, similar behavior has been recorded in various parts of the country for decades), but at what cost? The entire episode moves public beliefs about the judiciary away from the ideals of neutrality, experience, and competence, and closer to the cynical wisdom of “she is one of ‘my’ people, and will put a finger on the scale for me if I ever need it.”

Modern politicians use identity politics divisively to create natural voter bases, and to later whip those bases into a froth with perceived slights against their group. The whole premise is degrading, dehumanizing, and de-democratizing, albeit an effective tool in our troubled times for the small-minded politician. Judges and judicial candidates, however, can never afford to peddle in the cramped and dark politics of identity. In doing so, they give away their greatest assets: the promise of equal justice for all.

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.