West Virginia will again consider adding an intermediate court of appeals

West Virginia is one of the few states that has no intermediate appellate court, meaning that its state supreme court faces a more congested, mandatory docket. Lawmakers have periodically proposed adding a new court, but without success.

The effort has begun again: the West Virginia Appellate Reorganization Act was introduced in the state’s senate judiciary committee this week.

Intermediate appellate courts cost money and demand infrastructure, but they also make a lot of sense from the standpoint of the administration of justice. Some lawmakers are optimistic that this will be the year.

More fallout from the Solar Winds hack

After last month’s revelation that the federal court system was among the victims of the Solar Winds cyberhack, leaving thousands of sensitive documents in the hands of Russian hackers, members of Congress are now demanding answers about the extent of the fallout. As one story notes:

Senators Richard Blumenthal, Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Chris Coons, Mazie Hirono, and Cory Booker all signed on to a letter to the chief information officer at the Department of Justice and associate director of the administrative office of the U.S. Courts on Jan. 20 demanding a hearing on the changes and the potential access of court documents by the hackers.

“We are alarmed at the potential large-scale breach of sensitive and confident records and communications held by the DOJ and AO, and write to urgently request information about the impact and the steps being taken to mitigate the threat of this intrusion,” the senators wrote.

It’s not immediately clear to me why all of the signatories are Democratic senators. Perhaps it’s more pointless partisanship from a deeply dysfunctional Senate Judiciary Committee. But cybersecurity for the courts should be a bipartisan concern, and one can only hope that it will be treated as such.

The Administrative Office of the U.S. Courts has alraedy announced a plan to maintain sensitive filings on paper for the foreseeable future. We’ll see what develops in the coming weeks.

 

Tillman on transparency of court records in Ireland

My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.

The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.

These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.

About that cat video…

The viral sensation of the week is this video from a virtual hearing in a Texas state court:

The apparent backstory is that the lawyer’s secretary sometimes brings her children to the office, and one of them was using the office computer and installed the cat filter without telling anyone. And we can all relate: just two days ago my young son was using my computer for a Zoom playdate, and that evening I logged into my class from what appeared to be low-earth orbit. (Fortunately, I was able to switch the background pretty quickly.)

Still, I love how the judge handled the situation. Faced with an absurd and unexpected event, he showed extraordinary patience and grace — in fact, it was the judge himself who guided the lawyer through the steps of removing the filter. Moreover, the judge’s behavior was exactly what we should expect of judges. The fact that his dignified handling of the matter has gone viral may have the marginal benefit of reminding the public that courts are overwhelmingly serious, professional, and dignified places.

Kudos to Judge Bauer, and all involved, for injecting professionalism into a moment of absurdity.

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

The new administration is borrowing from Trump’s playbook, not Obama’s.

Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.

Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.

Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”

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.

Defendant seeks delay of major patent trial due to COVID

The primary defendant in a major patent case pending in the U.S. District Court for the District of Delaware has requested a delay of its scheduled trial due to concerns about conducting an in-person trial while COVID-19 rages on.

3G Licensing sued LG Electronics and others more than four years ago, alleging infringement of U.S. Patent No. 6,212,662. The patent concerns a method and devices for detecting transmission errors in data streams. Trial is scheduled for April, but in a letter to the court LG’s counsel worried about the ability to get a representative jury in the midst of a pandemic.

Courts have struggled to deal with trials during the coronvirus surge, with most delaying in-person trials or attempting to conduct them over video. Notwithstanding tireless efforts to assure due process and transparency for all parties, reactions to the videoconferenced trials have been mixed. At some point this year, courts should return in earnest to in-person trials (and will likely have a serious backlog to deal with). But it’s not fully clear whether that moment will come as soon as April.

Another voice against court packing

With the Biden Administration announcing the formation of a committee to explore reforms to the Supreme Court—including the possibility of adding seats—Democratic political consultant Douglas Schoen offers several words of caution in The Hill for would-be court packers. The key grafs:

Even if Democrats can get rid of the filibuster, packing the Supreme Court on a party line vote would tarnish judicial credibility and would reduce the institution to a partisan tool. Moreover, it would trigger an endless cycle of revenge politics, as each successive party in control would be motivated to add justices to restructure ideological balance on the bench.

The backlash of packing the Supreme Court would be considerable for Democrats, as this move is unpopular with voters. After the confirmation of Barrett, a national survey had found that, by 47 percent to 34 percent, voters think Democrats should refrain from altering the Supreme Court. But most Democrats do want party leaders to add more justices.

So packing the Supreme Court would damage the chances for Biden of achieving his elusive goal of unifying both parties. This would send the message that he is instead interested in fueling the current climate of partisan politics, rather than trying to fix it. It would not only harm his legacy, but would also likely prevent him from being able to pass any meaningful or comprehensive bipartisan legislation in office.

Schoen focuses primarily on the political damage that would be wreaked by court-packing, but the institutional damage to the judiciary would be just as significant. It would dramatically undermine public confidence in the Court through no fault of its own.

Institutions are fragile things. They take generations to build and imbue with legitimacy and confidence, but far less time to destroy. With so many of our political, religious, cultural, and civic institutions already under attack, we should refrain now from opening another wholly unnecessary front.

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.

Chief Justice will not preside over second Trump impeachment trial

Instead, it will be Senator Patrick Leahy in his capacity as president pro tempore of the Senate.

Historically, is not uncommon for officials other than the Chief Justice to preside over impeachment trials. But it remains unclear why Roberts will not be presiding in this instance. Did he subtly send signals that he was not interested? Was he trying to avoid a potential recusal should the trial result be appealed to the U.S. Supreme Court? Was he never asked to preside?

Some interesting thoughts from Gerard Magliocca here and Ann Althouse here.