Category: judicial selection

North Carolina legislature (again!) passes a law affecting judicial elections

When I started following North Carolina’s judicial election process a decade ago, it was a model for fair practices in directly electing the judiciary. Candidates ran in nonpartisan, publicly funded elections, and much of the chicanery that affects judicial elections in other states (like attack ads, targeted campaigns, and the like) was largely absent.

But sadly, the last couple of years has seen the North Carolina process turn into a clown show, as as aggressive state legislature tussles with the governor politicize the judiciary. Elections are once again partisan, and filling vacancies is ugly and political. And there is no sign of it ending anytime soon.

To wit: this week the state legislature passed a new law that appears to target a single candidate for the state supreme court. Chris Anglin is one of three candidates for an open seat on the court this fall. Anglin was registered as a Democrat until June, when he changed his party affiliation to Republican. The switch meant that two candidates would be identified as Republicans, and one as a Democrat, on the ballot.

Republican legislators, apparently concerned that the presence of two Republicans on the ballot would split the partisan vote and throw the election to the lone Democrat, hurriedly passed a bill that would remove any party designation for a candidate who switched parties less than 90 days before the election. As a result, Anglin would remain on the ballot, but without a party designation.

Republicans have couched the bill as a fair compromise to prevent the gaming of the election system. Democrats and Anglin are both crying foul. The question now is whether Governor Roy Cooper, a Democrat, will veto the bill.

Some quick thoughts on the Kavanaugh nomination

A few quick hits on President Trump’s nomination of Brett Kavanaugh to the Supreme Court:

  1. Predictions are easy to make, and hard to make correctly. If I were better at this, I would have moved to Vegas already.
  2. Judge Kavanaugh will be subject to the same partisan rancor that has infected our federal judicial nomination process for nearly two decades. But he is surely qualified for the Supreme Court. His dozen years on the D.C. Circuit, as well as his educational and professional background, more than qualify him.
  3. That said, I firmly believe that the President would have been more politically expedient for the President to nominate Joan Larsen (or one of several other former state supreme court justices) for the seat. Judge Kavanaugh is a “safe” pick in part because he has the profile of a consummate Washington insider. Born and raised in Bethesda, his professional career has primarily been spent within the federal government, and he doesn’t appear to have spent much time at all outside the Beltway. (Yale and two clerkships seem to be the bulk of his non-D.C. experience). President Trump had a real opportunity to woo voters in Middle America with a non-East Coast pick, and there were several highly qualified nominees of that sort on his 25-person short list. It is disappointing that someone with greater familiarity with America beyond the Beltway wasn’t picked.
  4. In the same vein, and despite Judge Kavanaugh’s credentials, I am also disappointed that another D.C. Circuit judge will populate the Supreme Court. The Court already has three D.C. Circuit alums (Roberts, Thomas, and Ginsburg). The D.C. Circuit is an important court, to be sure, but it hardly needs four justices out of nine with that limited perspective.
  5. I thought Trump would nominate a woman, if only to create a political advantage over the identity politics-obsessed Democrats in the Senate. The Kavanaugh nomination indicates that Trump was not interested in engaging that dynamic this time around. But it’s hard to believe that he wouldn’t revisit it soon. Perhaps he is counting on another vacancy opening in the next two years; if Justice Ginsburg retires, he could nominate a woman (perhaps an even more seasoned Joan Larsen) and really watch the fur fly.
  6. From the perspective of the courts themselves (and, after all, that’s what this blog is about), the Kavanaugh nomination means more judicial cascades to come. Assuming the nomination is successful, Trump will now have the opportunity to fill Judge Kavanaugh’s D.C. Circuit seat with a (presumably) younger judge of the same qualifications and ideological bent. If he pulls such a judge from the district court ranks, he will have another vacancy for the trial courts as well. Given the record pace with which he is nominating (and the Senate is confirming) federal judges, the courts will have a continued infusion of relatively young (Gen X) judges at all levels.

Predicting the next Supreme Court nominee

Portico_-US_Supreme_Court_BuildingAnthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.

The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.

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Senate Republicans understand Jeff Flake’s strategy on judicial confirmations, even if they’re not comfortable with it

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.

An update on Florida’s judicial vacancy lawsuit

Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.

The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.

Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.

Federal judicial nominations are caught up in a political fight (again)

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.”

***

“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.

Florida’s fight over filling a judicial vacancy

A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.

Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.

That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.

Continue reading “Florida’s fight over filling a judicial vacancy”

Pennsylvania Senate slips judicial reform into redistricting bill

The Pennsylvania Senate yesterday passed a significant redistricting bill that would redraw the maps both for the state legislature and the state’s representatives in Congress. Before the vote was taken, however, Senator Ryan Aument introduced an amendment that would also change the way Pennsylvanians vote for their appellate judges. The amendment calls for judges of the Commonwealth Court and Superior Court to be elected regionally rather than by statewide elections. The amendment passed, and did not seem to effect the passage of the final bill.

Sen. Aument later explained that his amendment would provide all areas of the state with representation on the appellate courts. Proponents also surmise that regional elections would increase voter turnout.

 

Rhode Island House passes magistrate bill

On Wednesday, the Rhode Island House of Representatives overwhelmingly passed a bill to create an unlimited number of new magistrate judges for its state court system. The bill was controversial, in that many of the state’s existing magistrates have been appointed outside of the prescribed process. State judges are supposed to be appointed through the state’s Judicial Nominating Commission, which provides opportunities for vetting and public input. Many magistrates, however, appear to have received their appointments as political favors.

As I noted previously, this is a tough spot for the Rhode Island court system. The additional magistrates will be welcomed to help with the courts’ work, but the court system as a whole could lose legitimacy if the public lacks confidence in the appointment process.