Category: Uncategorized

Wyoming legislature signals retreat from merit selection of judges

The growing populism in the United States over the past decade has posed a serious challenge both to judges and judicial selection systems. States with ostensibly nonpartisan judicial elections have considered moving to openly partisan ones, and states with merit selection systems have discussed reverting back to contested elections.

The latest example is Wyoming, which has chosen its judges through a merit selection system since the 1970s. Under Wyoming’s current system, a seven-member judicial nominating commission (consisting of three lawyers appointyed by the state bar, three non-lawyers appointed by the governor, and the chief justice of the state supreme court) vets candidates for a judicial opening and sends three names to the governor, who must select one. Judges then face retention elections at the end of their terms if they wish to stay on the bench.

The system has worked well for decades, ensuring that finalists for a judgeship have a demonstrated amount of competence and skill. And the final decision still rests with the governor, a statewide elected official. But this is not enough for the Wyoming Freedom Caucus, which is angry about certain judicial decisions in Wyoming and now wants to overturn the entire apple cart. The Freedom Caucus convinced the state’s Senate Judicary Committee to narrowly pass a proposition that would give the state Senate final approval over the appointment of state supreme court justices. That proposition would still have to make its way through the legislative process and be approved by voters.

This is a classic solution is search of a problem. The news story linked above notes that only 13% of Wyomingites in a recent poll disapproved of how judges are handling their jobs. There is also the practical problem that the state Senate is in session only two months a year — what happens when a vacancy arises during the other ten months?

Sigh.

Transparency in the court system is an important value, and we should always be looking for more ways to build public confidence in the administration of justice. But let’s be clear: the only transparency here is the Freedom Caucus’s transparent attempt to turn the state judiciary into a political arm of the right. Hopefully wiser heads will prevail.

Massachusetts federal court adopts anti judge-shopping provision

Chief Judge Dennis Saylor of the U.S. District Court for the District of Massachusetts has issued an order regarding the random assignment of certain civil cases filed in the district. The order states that “any civil action seeking to bar or mandate nationwide enforcement of a federal law, including a rule, regulation, policy, or order of the executive branch or a federal agency, whether by declaratory judgment and/or any form of injunctive relief,” will be randomly assigned to one of the district’s thirteen active Article III judges.

The order matters because the vast majority of the district’s judges sit in Boston, with only one judge located in each of Springfield and Worcester. A party hoping to enjoin a federal law or regulation might be tempted to file in one of those cities in order to secure the single judge assigned there. The federal courts have increasingly resisted such efforts to “judge shop,” especially in cases where a single district judge is invited to permit or prevent the application of a federal law nationwide.

State courts explore using AI for behind-the-scenes HR work

Most news about the use of AI in the legal world tends to focus on ethical slipups like relying on ChatGPT to draft briefs or do legal research. But behind the headlines, courts and law firms are becoming incresingly proficient with using generative AI to perform routine administrative and bureaucratic tasks. A good example is the use of AI to streamline human resources work for the courts. In a recent webinar hosted by the National Center for State Courts and Thompson Reuters, participants pointed out that among other things, HR managers can employ AI to more quickly craft job descriptions and performance reviews.

Of course, AI is still a new and somewhat unpredictable technology, and there are real concerns about hallucination, infringement of intellectual property, and exposure of confidential information. But the technology is rapidly improving and meaningful protocols will be in place soon enough. Court and law firm administrators would do well to see AI as another potentially time-saving tool in the tool kit, no different from word processing software or copy machines in earlier generations.

Georgia judge dies in courthouse by apparent suicide

A tragic story as the year turns over: Georgia state judge Stephen Yekel was found dead in his courtroom Tuesday morning. The cause of death appears to be a self-inflicted gunshot wound.

Yekel was elected to the bench in May 2022 but was not reelected this past November. His term was set to end on December 31. A few weeks ago, Yekel attempted to resign his position effective December 30, apparently to nullify the election results by creating a new vacancy that could be filled by Governor Brian Kemp. But Kemp refused to accept the resignation and deferred to the will of the voters.

Our thoughts are with Judge Yekel’s family and friends.

Biden leaves a lump of coal in the judiciary’s stocking

As we feared, President Biden has vetoed the JUDGES Act, a bipartisan bill that would have created new federal judgeships for the first time in more than three decades.

The bill would have added new judges over ten years, assuring both that the American public had sufficient judges in its federal system to handle the growing daily workload, and that no single President or Congress would have control over all the appointments. (The benefits of the bill are fleshed out more fully here.) Biden’s veto is shortsighted and spiteful, hurting a sister branch of government with no concomitant benefit to him or anyone else.

The Administrative Office of the U.S. Courts expressed its own disappointment in a statement from Judge Robert Conrad:

“The President’s veto of the JUDGES Act is extremely disappointing. Providing additional judgeships is essential to improving access to the courts and necessary for the efficient and effective administration of justice, as the Judiciary stated in a recent letter to the President addressing issues raised by the Administration in objection to the bill. The judgeship legislation presented to the President reflects decades of work by the federal Judiciary and is very similar to legislation introduced in the last Congress. It is not a bill that was hastily put together. Rather it is the product of careful and detailed analysis which considers primarily the weighted caseload per active judge in each judicial district, while also factoring in the contribution of senior judges, magistrate judges and visiting judges.”

Happy holidays to all my readers. Wishing you peace, love, and happier news for the judiciary in the year ahead.

ABA calls for mental health resources for the judiciary

At its annual meeting this week, the American Bar Association passed a resolution recognizing the many mental health challenges faced by state and federal judges, including exposure to traumatic evidence in the courtroom and increased threats against judges at their homes and workplaces.

The JD Journal reports:

The resolution sheds light on the psychological toll these challenging circumstances take on those within the judiciary and urges national court leaders to develop specialized training and processes. The goal is to provide judges, their support staff, and their families with access to professional, confidential treatment, working in tandem with court security teams.

The catalyst for this resolution has been the unsettling surge in threats and violent incidents targeting judges. Among the distressing incidents mentioned is the arrest of an armed individual outside the residence of Supreme Court Justice Brett Kavanaugh last year. The assailant was later charged with attempted assassination. Additionally, the tragic 2020 murder of the son of U.S. District Judge Esther Salas, shot by a disgruntled litigant at her New Jersey home, underscores the gravity of the situation.

…

The National Conference of State Trial Judges Chair, Delaware Superior Court Judge Vivian Medinilla, submitted the resolution’s report. The document emphasizes the necessity of shifting attention beyond judges’ well-being and towards the broader group affected by traumatic events – including judges’ staff and their families.

In an arena where exposure to distressing scenarios is all too common, the report argues that these individuals are also at risk of experiencing trauma, whether stemming from explicit threats or the very nature of court proceedings. From complex sentencing hearings to divorce cases, abuse situations, and matters involving sexual crimes, the judicial staff’s exposure to distressing scenarios is extensive.

Yes.

The leak

I wish I could give the stunning leak of Justice Alito’s draft opinion in Dobbs its due today. For now, I will note that I agree with Bari Weiss’s take in its entirety, especially this part:

To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.

The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”

Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”

What did he mean by that? “They think that everything is violence. And so everything is permitted.”

He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”

The Chief Justice has directed the U.S. Marshal to launch an investigation. This is a pivotal moment for the Court, as it works to quickly eradicate this source of institutional rot.

The best of 2021

With the turn of another calendar page, it’s time again to look back on my favorite posts of the past year. I’m thrilled to have had more unique page views in 2021 that any at time in this blog’s history. Thanks, as always, to my readers both new and old, and please come back frequently for more in 2022.

Enough. (January)

What should we expect of Biden when it comes to the judiciary? (February)

About that cat video… (February)

State courts come under legislative assault (March)

Portland’s federal courthouse attacked again (March)

Biden tips his hand on the next Supreme Court nominee (March)

Montana Republicans increase political pressure on state supreme court (May)

Two ways of pursuing justice (August)

Should judicial compensation be tied to performance evaluation results? (August)

What is fueling the federal courts’ response to the judicial recusal crisis? (October)

In Memoriam: Gregory J. Hobbs, Jr. (December)

Here is the best of 2020, 2019, 2018, and 2017.

Two ways of pursuing justice

This week, Jews around the world will read the Torah portion known as Shoftim (Judges). This particular section of Deuteronomy instructs the Israelites to establish judges and officers in their communities, and includes the famous injunction, “Justice, justice shall you pursue.”

Like many, I have long been fascinated and perplexed by this command. Why is “justice” repeated twice? And why are the people instructed to pursue justice rather than to achieve it? The answers that immediately spring to mind — the second “justice” is for emphasis, and the command to “pursue” a nod to the idealism of the rule — do not fit comfortably with the larger text of the Torah. The direct repetition of a word, for example, is not common in Biblical text, and traditional exegesis demands that the second use carry a separate and independent meaning. Over the years, I have heard and read many thoughtful takes on the issue. Perhaps, for example, the repetition of “justice” captures substantive and procedural justice, or justice for the individual and for the community, or social justice and justice under the law.

The term “pursue” is equally difficult. Granted, it is impossible for any society to actually achieve perfect justice; perhaps dogged pursuit is all that can be expected of us. But the Torah includes other commands that are equally inconsistent with human nature. “Do not covet,” for example, is an impossible task for mere humans to adhere to, yet it comes with no qualifying language. So why say “pursue” here?

These questions pop into my mind every year around this time, a natural consequence of reading Shoftim around the start of the new law school year. But this time, there was another reason to take a close look at the Biblical injunction to pursue justice. It came in the form of an extraordinary recent episode of Bari Weiss’s new podcast, Honestly. In this episode, Weiss and guest podcaster Kmele Foster examine the “Central Park Karen” story from last summer. They reveal that the simple, straightforward story that was presented to the public is in fact complex, nuanced, and oftentimes messy. And it raises all sort of difficult questions about how our society metes out justice, both in and out of court.

Continue reading “Two ways of pursuing justice”