David Lat has a typically insightful post at Above the Law, looking at the potential nominees for openings in the federal district courts and federal circuit courts. One of the more striking parts of his analysis is the relative youth of many of the names being kicked around — most are in their 30s or 40s. This makes sense from the President’s perspective; younger judges allow him to shape the federal bench for decades to come. But it is also a moment of reckoning for those of us in that generation. Continue reading “Gen X prepares to take the bench”
In several states, the two senators collectively create a screening committee to recommend names of local attorneys and state judges to the President for a federal judicial appointment. The committees are not mandatory, and have been used somewhat haphazardly over time, but they do allow senators to provide useful information to the President about qualified individuals for the federal bench. The committees also help lock the senators in when home-state openings arise: by pre-screening a list of possible candidates, the senators are essentially telling the President that they will support any nominee who comes from that list. Such advance agreement avoids the embarrassment that Senator Michael Bennett must have felt earlier this month when, for purely partisan reasons, he had to vote against an extremely well-qualified fellow Coloradan, Neil Gorsuch, for the Supreme Court. Continue reading “Washington’s senators ask President to honor work of their judicial screening committee”
According to this story, a special counsel for Mayor Bill de Blasio has noted the difficulty of finding qualified applicants to fill interim posts on the New York City Civil Court. It’s not hard to see why. Candidates are guaranteed only one year on the bench, after which they must stand for election to keep their positions. But in New York’s byzantine judicial election system, which is largely run by party bosses and was once flatly characterized by Justice Stevens as “stupid,” excellent service on the bench for a year is no guarantee of future employment.
Consider the problem from the perspective of potential applicants. To move to the bench, those in private practice would have to give up their clients, essentially depleting years or decades of work in developing a book of business. It would be professionally negligent, if not career suicide, to allow all your clients to move on in return for a one-year gig on the bench. Potential applicants in the District Attorney’s office or Public Defender’s office might be able to extract themselves a bit more easily, but face similar risks in moving themselves back and forth from the bench. As a result, the pool of potential applicants is likely to contain near-retirees or lawyers without much business than it is high-quality attorneys in their prime.
New York, like other states, could resolve the problem by moving away from judicial elections altogether. Appointed judges would have more confidence in their ability to stay on the bench for a while, given good behavior.
State legislatures continue to propose and advance bills that will impact their respective court systems. Here are some of the latest developments:
- Indiana’s proposal to convert Marion County (Indianapolis) to a merit selection system is heading to conference committee. The latest version of the bill calls for a 14-member nominating committee to choose three final candidates for the governor’s selection; four of the committee members would be chosen from voters. Previous coverage of the Indiana bill and its history is here.
- In Arkansas, a new bill would change the way state judges are elected in Cumberland County Superior Court. The current election system grants seats on the bench to the top two vote-getters among all candidates. The bill would require candidates to declare which of the two judicial seats they are seeking.
- The Florida House of Representatives has passed an amendment to the state constitution that would impose term limits on state appellate judges, including supreme court justices. This is a terrible idea, but happily it is still in its infancy. The state senate would also have to approve the move, and then voters would have to approve it in 2018. Similar efforts in others states have been defeated in recent years after they were exposed for the transparent political proposals that they were.
- Nebraska’s unicameral legislature has advanced a bill to raise judicial pay in the state.
There are more than 100 openings on the federal district courts, most of which will be filled by nominees who have never held judicial office. A strong early rating from the ABA would not only smooth the confirmation process, but would send a positive signal to the public.
President Trump has apparently decided not to invite the American Bar Association’s Standing Committee on the Judiciary to review the professional qualifications of his lower federal judicial nominees, stating that “the administration does ‘not intend to give any professional organizations special access to our nominees.'” This move is not unprecedented, but it is deeply short-sighted.
Merit selection refers to a method of choosing state judges through a nominating commission, which typically selects three candidates and forwards the names to the governor for final selection. Judges chosen through merit selection are therefore pre-vetted for qualifications, skill, and judicial temperament. Most states with merit selection protect accountability to the public by appointing judges to set terms on the bench, after which they must seek reappointment or retention before the voters.
I have long championed merit selection as the best process for balancing quality judges and public accountability. The process is not perfect, but if done thoughtfully — with a balanced and inclusive nominating commission, sufficiently lengthy terms to allow a judge to grow professionally on the bench, and retention elections coupled with a transparent judicial evaluation process — they have proven to be very effective.
Many states around the country choose some or all of their judges through merit selection. And Indiana, which uses merit selection for trial judges in three large counties (Allen, Lake, and St. Joseph), is now poised to expand the system to Marion County as well.
From the Palm Beach Post: Santino says she broke rules in election but still fit to be judge.
The judge, who was elected in November, is facing disciplinary action for four ethics violations, stemming from campaign statements that impugned the integrity of her opponent and the entire judicial process. Of note, Judge Santino sent a campaign email disparaging her opponent’s criminal defense work and is tied to a Facebook page proclaiming that her opponent “has made a lot of money trying to free Palm Beach County’s worst criminals.”
Judge Santino faces a disciplinary hearing before another state judge this week, after which recommendations will be made to the state supreme court. From an organizational perspective, this is another interesting example of the courts policing the actions of their own members even when those actions fall outside the strict definition of judicial activity.
The case, alas, is also another example of how contested judicial elections can compromise both the actual and perceived impartiality of judges. Most judges, of course, never run into ethical issues of this type. But elections vastly increase the risk of such ethical violations, and the misbehavior of a handful of judges or judicial candidates can have damaging ripple effects on the public trust of the entire judiciary.