The President’s unforced error on ABA vetting

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.

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Indiana legislature considers expanding merit selection for state judges

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.

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Florida judge admits ethics violations in election campaign

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.

North Carolina House overrides veto on partisan judicial elections bill

As I reported previously, North Carolina Governor Roy Cooper vetoed a bill that would require state trial court elections to be partisan.  Candidates would have to participate in party primaries and run under a specific party affiliation.  Disappointingly, the state House of Representatives voted to override the veto yesterday.  The issue now moves to the state Senate.

UPDATE: The Senate has completed the veto override.  All North Carolina judicial elections will be partisan going forward.

The quiet power behind Neil Gorsuch’s opening statement

Judge Neil Gorsuch’s opening statement in his Supreme Court confirmation hearings was a lovely ode to his family, upbringing, and the judges and lawyers who mentored him throughout his career.

Two passages in the 16-minute speech jumped out at me:

As a lawyer working for many years in the trial court trenches, I saw judges and juries — while human and imperfect — trying hard every day to decide fairly the cases I presented. As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world. Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands.

***

Of course, I make my share of mistakes. As my daughters never tire of reminding me, putting on a robe doesn’t make me any smarter. I’ll never forget my first day on the job. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying. But troublesome as it can be, the robe does mean something — and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us that it’s time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.

I am not the only one to be struck by the phrase “honest black polyester,” but it certainly sits right with anyone who has worked with a judge day in and day out.  The unrelenting human-ness of judges, struggling to get it right and self-constrained by their own respect for the law, characterizes American courts far more than the know-it-all lawgiver or the robed politician.

Full C-SPAN video of Judge Gorsuch’s statement is here.

Dear Pennsylvania: a lottery is no way to pick a judge

The Philadelphia Inquirer reports on the results of last week’s ballot lottery for candidates seeking a position on Philadelphia’s Court of Common Pleas (its general jurisdiction trial court).  Forty-eight candidates entered the state primary for ten open positions, and their ballot order was determined by lottery.  The article nicely details the consequences of ballot position: candidates at the top have a tremendous strategic advantage in the primary election, regardless of their relevant experience, expertise, or skill.

Judicial elections were the standard for state courts until the mid-twentieth century, but their flaws have become increasingly exposed over time.  Poor or incompetent judges are elected, experienced jurists are removed in party sweeps, and public confidence falls as judges are treated as ordinary politicians.  Groups like Pennsylvanians for Modern Courts have been at the forefront of pushing for positive change in that state’s judicial selection methodology.

Contested elections can — and often do — produce fine judges.  And judges should be accountable to the public they serve, no matter how they are chosen.  But the surety of choosing a good judge by contested election increasingly feels like a lottery itself.

Gorsuch hearing preview: A moment where state ties trump partisanship

Supreme Court confirmation hearings for Neil Gorsuch begin today with the introduction of the nominee by his home state senators, Michael Bennett and Cory Gardner of Colorado.  It is a nice bipartisan tradition for the home-state senators to introduce all federal judicial nominees, presumably dating back to a time when the rest of the Senate was not assumed to be familiar with a candidate.  While almost all post-Robert Bork Supreme Court hearings have been contentious at times — usually unnecessarily so — it is a nod to decorum that the Senate still begins every hearing with such a welcoming gesture.

Home-state bipartisanship in judicial selection is not just a matter of courtesy. Senators from many states have developed bipartisan screening committees to help them recommend qualified candidates for lower federal judgeships to the President.  These screening committees review the qualifications of those interested in judgeships on federal district courts and circuit courts of appeal, and pass the names along to the home state senators, who then pass along names to the President.  While the President has ultimate discretion in choosing a nominee for any Article III judgeship, the use of screening committees effectively pre-ratifies the candidate, and helps ensure a much smoother confirmation process.  The Supreme Court represents a special circumstance where screening committees are not used, but we can hope that both President Trump and the Senate will continue to rely on them where appropriate in considering lower court nominees.

We will be following the Gorsuch hearings this week, with commentary to follow on how the hearings reflect and impact the current relationship between Congress and the courts.