It’s our fourth blogiversary!

Thanks to all the readers who have come to The Independent Third Branch since our founding in late 2017. The start of 2021 has seen a surge  in readership and subscribers, for which I am humbled and deeply thankful.

Please look around while you’re here, subscribe for email updates, and check back regularly for more discussion of courts and the judicial process.

A new day and a plea for unity

The Dean of my law school, Scott Brown, has an op-ed up at The Hill calling for unity as the United States inaugurates Joe Biden as its 46th President. It’s an important message. Over the past decade-plus, Americans’ disagreements over policies and protocols have devolved into distrust and outright demonization of their neighbors and countrymen. It is a depressing and dangerous condition, but it is reversible.

I am not naive enough to think that unity will be achieved simply with a change in administration. Donald Trump was a symptom of our dysfunction, not a cause of it. But Inauguration Day provides an excellent opportunity for us to look at ourselves and ask what we really want to be. I hope for an America where people do differ on policies and conceptions of the good life, where we are squabbling and passionate and relentless about our convictions, but also where fealty to the core values of our country — among them free speech, due process, equal protection, and respect for the rule of law — provides the unshakeable foundation for good faith arguments about our future.

Regular readers of this blog know that I have sometimes been hard on Joe Biden and Kamala Harris. I will continue to do so when I disagree with their policies and actions. But I will also give them credit whenever it is merited, and I will always wish them well. They are now steering a ship of 330 million people, and it is in the interest of the country — indeed, the entire world — that they succeed. May they find that success today and in the coming years.

The best of 2020

Thanks to all my readers, old and new, for your curiosity and interest, and most importantly for sharing some of your time with us this past year. Here are some of my favorite posts from the past twelve months.

Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea (January)

New York judge calls for reform to state bail law (February)

Still more embarassment for the “Chicago Way” of choosing judges (February)

On reforming the Supreme Court (March)

How coronavirus is affecting the courts (March)

Mini-symposium on judicial qualifications and experiential diversity (March):

The virtues of remote access to the Supreme Court (March)

What does a court hearing by videoconference look like? Here’s an example. (April)

COVID-19 and the courts: where we are and where we might be going (April)

The federal courts try to self-censor. A federal judge says no. (May)

Massachusetts courts embrace virtual hearings (June)

The cravenness of Democratic “Court reform” proposals (July)

Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform? (July)

How far can Congress probe the judicial thought process? (July)

COVID’s silent victim in the courts: traditional due process (August)

The mortifying state of our Supreme Court confirmation politics (September)

Jurisdiction stripping is back, this time from the left (October)

On Biden, the Court, and what voters “deserve to know” (October)

A Senator beclowns herself at a Judiciary Committee meeting (again). Facebook rushes to her aid. (October)

Electoral chickens come home to roost in North Carolina courts (November)

State courts confront budget shortfalls in wake of COVID (November)

Making sense of the new PACER bill (December)

Here is the best of 2017, 2018, and 2019. Please visit early and often in 2021!

A senator beclowns herself at a Judiciary Committee hearing (again). Facebook rushes to her aid.

I don’t usually comment on the culture wars, but every once in a while they connect directly to the operation and interdependence of the judiciary. This week brought an unfortunate example.

This blog has chronicled some of the inappropriate questions and comments from Senator Mazie Hirono (D-HI) in the course of her service as a member of the Senate Judiciary Committee — comments that have drawn sharp criticism even from members of her own party. Among other things, Senator Hirono finds it proper to ask Catholic judicial nominees about their private religious affiliations and practices, as if membership in a church or the Knights of Columbus has any demonstrable impact on a person’s ability to handle the solemn duties of judicial office.

Hirono’s aggressive disgressions were on display during last week’s confirmation hearings for Amy Coney Barrett. First, Hirono asked Barrett — a widely-respected judge, law professor, and mother of seven — if she had ever sexually assaulted anyone. Hirono followed this obscene question with a loud “tsk-tsk”ing of Barrett for her use of the term “sexual preference” during the hearing. Even though Judge Barrett immediately apologized for any unintended offense, Hirono proceeded with a baseless attempt to brand Barrett as a homophobe. (The meaning of the term is certainly in flux and is offensive to many, but it remains in use by, among others, Joe Biden.)

Questions and comments like Hirono’s — which erode public confidence in the court system without any concomitant positive contribution — are cause for civic despair. But in America, such despair often manifests itself as gentle mockery. And the Babylon Bee, a Christian humor site, came through with the following satirical story:

Senator Hirono Demands ACB Be Weighed Against A Duck To See If She Is A Witch.

This may not be the funniest thing I have read in my life, but it’s certainly good for a chuckle — especially for the large number of readers who instantly recognize the direct allusion to “Monty Python’s Holy Grail.” It’s not surprising, then, that the Bee piece was shared widely on social media, including Facebook.

But in a stunning bit of self-importance and tone-deafness this week, Facebook pulled down the article and demonetized the Bee’s own Facebook page, on the spurious grounds that the article “incites violence.” After an appeal and manual review, Facebook has apparently chosen to stand by its decision.

So Americans lose twice. First, a Senator squanders an important opportunity to substantively question a Supreme Court nominee in the name of advancing identity politics. And then, a long tradition of satire is crushed by a social media giant on the weakest of pretenses. Score another point for civic despair. 

Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction

A guest post by Lawrence Friedman

Among the potential nominees for the U.S. Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s passing was Barbara Lagoa, currently a judge on the U.S. Court of Appeals for the Eleventh Circuit. Like the eventual nominee, Seventh Circuit Judge Amy Coney Barrett, press reports labeled Lagoa a “conservative jurist,” supported by statements from progressive organizations like Alliance for Justice, which asserted that Lagoa’s decisions “raise concerns that she will side with the wealthy and powerful at the expense of everyday Americans.”

One problem with this statement is its premise—namely, that cases in which corporate interests prevail necessarily are the result of a judicial predisposition, rather than the application of controlling legal principles to the facts at hand. Though the results in some cases may reflect motivated reasoning, it remains that judges, both state and federal, in the main seek to honor their oaths to apply the law to the facts without fear or favor. There may be no better example of this commitment to the evenhanded administration of justice than Justice Ginsburg herself, as she was responsible for a series of civil procedure decisions over the past decade that effectively benefited corporate interests at the expense of individuals.

To be sure, it is unlikely you will find Ginsburg’s decisions on the principle of general jurisdiction in any compilation of her most important work as a judge. For example, a new collection curated by Corey Brett Schneider for his Penguin Liberty imprint, Decisions and Dissents of Justice Ruth Bader Ginsburg, features her majority opinions, dissents, and appellate briefs from cases involving gender equality and women’s rights, reproductive freedom, and voting and civil rights—with nary a mention of the pathmarking decisions on federal civil procedure she consistently wrote during her time on the high court.

Continue reading “Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction”

IAALS seeks new CEO

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS), one of the premier legal reform organizations in the United States, is seeking a new CEO. The full details can be found here.

As a proud alumnus of, and occasional ongoing contributor to, the IAALS family, I can confirm first-hand that this is a remarkable organization and a remarkable opportunity. It will take an equally remarkable person to take IAALS into the 2020s and beyond, but I encourage all qualified people to give it serious consideration.

Federal appellate courts are fully staffed for the first time in 43 years

Ballotpedia reports on Administrative Office of the U.S. Courts statistics, showing that every one of the 179 judgeships on the U.S. Courts of Appeals has been filled, with no pending vacancies. It is the first time since 1977 that there are no vacancies at this level.

There are still 70 district court vacancies, representing more than 10% of the total judgeships at that level. But the courts are slowly working their way back to the judicial capacity to which they are statutorily authorized.

Judicial Conference to push for legislation and funding to assure safety of federal judges

In the wake of the horrific shooting of Judge Esther Salas’s son and husband at her New Jersey home last month, the Judicial Conference of the United States has resolved to seek aggressive legislation and funding to better protect federal judges and their families. The Judicial Conference’s press release, which lays out its proposals, is here.

Let’s hope that Congress acts quickly to provide the necessary resources.

In Memoriam: Stephen Susman

This morning brought the sad news that renowned trial lawyer Stephen Susman has passed away from the novel coronavirus. He was 79.

Steve was widely known for his remarkable trial skills, and as a founder of the Houston litigation firm Susman Godfrey. But his professional energy and interests extended far beyond the courtroom. He was deeply active in efforts to improve the civil justice system and to preserve the civil jury trial. A few years ago, he founded the Civil Jury Project at NYU Law School for that express purpose, bringing together lawyers, judges, jurors, and scholars to study and advocate for the importance of civil juries.

I first met Steve about ten years ago, at the Duke Conference of the federal Advisory Committee on Civil Rules. As judges and lawyers struggled to determine the best way to rein in discovery costs, Steve pointed out how much can be done when opposing counsel simply act like adults and professionals. As proof, he submitted a two-page checklist of discovery agreements that he claimed to use in every case. It was a straightforward and sensible list, agreed to by counsel in advance, covering issues like the order of depositions and the labeling of exhibits — the type of things that would naturally keep discovery within reasonable limits and avoid pointless cost to the client. My favorite item remains the very first on the list:

As to any discovery dispute, the lead lawyers will try to resolve [it] by phone and no one will write letters to the other, including letters attached as pdf’s to emails and phone calls.

The entire checklist was so simple, and yet so brilliant, that I immediately sought permission to share it with my law students. (Steve graciously granted that permission in short order.) I still assign the checklist to my law students as a paradigm example of how a lawyer can simultaneously be a zealous advocate of his client and a responsible officer of the court.

About three years ago, Steve asked me to join the Civil Jury Project as an academic advisor, an invitation for which I was both honored and grateful. It was a pleasure to see him in action, with his relentless energy and good cheer, as he brought together jurors and lawyers at “jury improvement luncheons” across the country, and held programs for scholars to share their insights into the jury system.

Our thoughts are with Steve’s family today. His passing is a profound loss for the entire legal community.