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.

 

John J. Parker’s failed Supreme Court nomination

Columnist Ray Hill at The Knoxville Focus has been running an interesting multi-part series on the nomination of Judge John J. Parker to the Supreme Court in 1930. Judge Parker, who was serving on the Fourth Circuit Court of Appeals, would narrowly lose his confirmation vote due to the complex political alignments of the era. He would continue to serve on the Fourth Circuit until his death in 1958.

Parker has long been an interesting character from the perspective of federal court organization and administration. A politician before he began his judicial career, Parker was very closely tied to the leadership of the American Bar Association, and was one of the principal architects of the “Queen Mary Compromise” which created the modern Judicial Conference of the United States. (Interested readers can learn more here.)

Ray Hill’s pieces paint a vivid history of the Parker nomination, from the surprise opening on the Court occasioned by Justice Edward Sanford’s untimely death (after a routine dental appointment), to the rift within the Republican Party, to the shifting political demographics of the South. Although all four parts collectively feel repetitive at times, it’s a valuable overview of a fascinating moment in history.

The four parts of the series can be found here, here, here, and here.

 

Cook County attorney steals a page from Trump’s playbook

Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:

The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.

“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.

In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.

It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.

Texas commission recommends move to nonpartisan judicial elections

The fifteen-member Texas Commission on Judicial Selection has issued a formal report recommending that the state move away from partisan judicial elections in favor of nonpartisan elections. A bar majority of the commission members — eight — supported the change. But since most dissenters are state legislators, it seems unlikely that the commission’s recommendations will be followed anytime soon.

The Texas Tribune has an excellent summary and analysis here. A snippet:

“I do not believe the citizens, my constituents of the state of Texas, want this right taken away from them, and I’m not gonna be in a position or be the one who does that,” state Sen. Joan Huffman, R-Houston, said at the committee’s final meeting in December. Huffman, who served as a trial judge in Houston, and said the experience of campaigning for the bench had been valuable.

The counterargument to that came most persuasively from former judges, who have been pointing out for years that while Texans say they cherish their ability to elect judges, they typically have little idea who they’re choosing between.

In Houston, for example, there are dozens of judges on the ballot, lists long enough that even top local attorneys struggle to familiarize themselves with every candidate.

In the absence of better information, voters often turn to the demographic clues they can glean from the ballot itself. In this year’s Democratic judicial primaries, for example, female candidates got more votes than male candidates in every gender-split race, about 30. And in Republican primaries, judicial candidates with Hispanic-sounding surnames have often fared poorly, owing, experts say, to a largely white electorate.

“Judges can be elected even though no one knows who they are,” pointed out Wallace Jefferson, who was the first Black chief justice of the Texas Supreme Court. Instead of vetting the qualifications of the judicial hopefuls they are choosing between, he said, voters often choose based on party affiliation, “or they vote based on the sound of your name.”

 

North Carolina election finally comes to a close as Newby sworn in as Chief Justice

The hotly contested election for Chief Justice of North Carolina, which went through several recounts and concluded with challenger Paul Newby winning by 401 votes, is now formally in the books. Newby was sworn in as the state’s 30th chief justice on Friday.

North Carolina Chief Justice election still undecided

More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).

But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.

After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.

Posturing and gamesmanship in Israeli judicial appointments

In October, I pointed out the childish posturing of Senate Democrats, who boycotted the Judiciary Committee’s confirmation vote for Justice Amy Coney Barrett and sent cardboard cutouts in their place. The stunt made a mockery of one of the Senate’s core responsibilities, and I suspect that it played at least a small role in the Democrats’ poor showing in November’s legislative races.

Unfortunately, such spectacles are not limited to the United States. Earlier this week, three right-leaning Israeli lawmakers boycotted the meeting of that country’s Judicial Appointments Committee, evidently believing that their absence would prevent a quorum and preclude the Committee from appointing two Israeli Arabs to judicial positions.

They were wrong. The law allows the committee to meet with any number of members present, as long as there are at least seven members on the committee roster. Because the boycotting politicians never resigned from the committee, the committee had the requisite number of members to move forward even in their absence. Ultimately, the committee appointed 61 judges, include one of the Arab candidates.

If there are good reasons to oppose a judicial nominee, by all means politicians should vote to oppose. But preventing the wheels of government from operating purely for partisan gain harms the judiciary and insults the public.