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.

The head of a Florida judicial nominating commission resigns. Who is to blame?

A strange story has emerged out of Florida’s 18th Judicial Circuit. The head of the Circuit Judicial Nominating Commission, attorney Alan Landman, resigned after a kerfuffle with Governor Ron DeSantis over the commission’s recommendations for an open judicial seat in Brevard County. Landman maintains that he had no choice but to resign after the Governor directly interfered with the independence of the nominating commission. The Governor’s representatives, by contrast, maintain that Landman was asked for his resignation after he inappropriately pushed his own preferred candidate.

Continue reading “The head of a Florida judicial nominating commission resigns. Who is to blame?”

Another major conflict of interest in Brooklyn’s judicial elections

The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:

Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.

Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.

Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.

Massachusetts dallies with, and rejects, judicial term limits

My colleague Lawrence Freidman — a sometime guest contributor to this blog — praises the decision here:

The measure the Committee rejected proposed amending the state constitution to provide that judges be reviewed every seven years by the governor’s council. In an interview with The Lowell Sun, the author of the “Proposal for a Legislative Amendment to the Constitution Relative to the Term of Judicial Officers,” Representative Tom Golden, stated that the goal was judicial accountability, particularly for those judges “who consistently make poor legal decisions. 

There are two problems with this justification. First, it is far from clear that there ever could be universal agreement – or even agreement among the members of the Governor’s Council – as to the definition of a “poor legal decision.” It is a fact that, in every civil and criminal case, one party is bound to be disappointed by some judicial ruling, whether it concerned scheduling, procedural mattersor the admissibility of evidence—not to mention the end result. In other words, decrying a “poor legal decision” is in many instances another way of saying you simply do not agree with that particular decision. 

This is not to say that judges are infallible, or that no judicial decision can be deemed objectively wrong. But this leads to the second problem with the proposal: the notion that the only effective form of accountability is one that involves the democratic removal of constitutional officers from their posts.

Read the whole thing!

Texas judge accidentally resigns via Facebook

William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.

Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.

Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”

Wheeler on the public and the federal judiciary

Liberals frustrated with the current direction of the U.S. Supreme Court have initiated another round of Court-packing schemes. These proposals are nothing more than sound and fury for an agitated left-of-center base, but Russell Wheeler of the Brookings Institute offers a typically insightful and sober analysis on a possible disconnect between the Court and the public, and what might result after 2020. It’s well worth the read.