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.

Chief Justice issues 2020 Year End Report

Per longstanding tradition, while you were anxiously coaxing 2020 into oblivion last night, the Chief Justice quietly issued his Year-End Report on the Federal Judiciary. Also per tradition, this year’s report features more musty anecdotes about the courts, this time focused (predictably) on pandemics. The Chief Justice congratulates the entire court system on its turn to video hearings and trials in the wake of the COVID-19 spread.

Kudos are indeed in order for reacting relatively swiftly, but I will save my formal congratulations for when the federal courts embrace technology with foresight and a commitment to transparency. Here’s an area where the federal courts could learn much from their state counterparts, if they are willing.

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!

Concerns about India’s judiciary remain unresolved

Almost three years ago, four justices of India’s highest court held a press conference to publicly air concerns about the administration of justice in that country. The press conference made international news, but it appears that it has not catalyzed significant change. At least, that it the view of this op-ed:

It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.

If true, this was a profoundly serious charge.

There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.

There is still no transparency in the selection of judges.

The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.

I wonder if this will get new traction in the coming year.

Assessing the Supreme Court’s new oral argument format

When the coronavirus pandemic forced it to move to telephonic oral arguments last May, the U.S. Supreme Court adopted a new format. Each Justice, in descending order of seniority, was afforded three minutes to ask questions of each side. The result was much cleaner, and in many ways more interesting, that the conversational scrum that typically erupts at One First Street. Justice Thomas has come alive, knowing that he will be able to get a question out without interruption. And while more junior Justices have some of the wind taken out of their sails for having to wait their turn, some of the follow-up questions have proven to be equally interesting and clarifying.

Of course, not everyone is happy with the new format, and Bloomberg Law reporter Kimberly Strawbridge Robinson has been all over it. Last month, she explained that it has been harder for advocates and reporters to get a sense of what’s on the mind of Amy Coney Barrett, the juniormost Justice, since she is last in the queue to ask questions. And recently, she reported that many of the Justices themselves dislike the format, specifically because it stifles the freewheeling discussion to which they are accustomed. In particular, Justice Breyer, who likes to tease out lengthy hypotheticals during oral argument, has been frustrated to hear the Chief Justice say “your time is up” before the question is even complete.

I’m not sure there is an answer that will please everyone. My gut instinct is to extend the time for oral argument — there is nothing magical about 30 minutes per side — but that will probably just invite more palaverous and repetitive questions. What about submitting written questions to the parties after the argument? I’m just spitballing here. But having enjoyed getting to hear Justice Thomas’s thinking during telephonic hearings — not to mention the clarity of not having everyone talk over each other — I would hate to just have a knee-jerk reversion to the old system when the pandemic subsides.

Federal courts announce audio livestream pilot

From today’s press release:

Thirteen district courts around the country will livestream audio of select proceedings in civil cases of public interest next year as part of a two-year pilot program.

Some of the courts already have begun making proceedings available via audio livestreams. The Northern District of Georgia on Dec. 7 streamed audio of a hearing on a presidential election-related lawsuit, which drew over 42,000 listeners. In September, the Eastern District of Missouri streamed audio of a status conference in the case of U.S. v. City of Ferguson. The remaining courts will be livestreaming by February 2021.

The 13 district courts participating in the pilot are in Northern California, Southern Florida, Northern Georgia, Kansas, Montana, Eastern Missouri, Nevada, Northern New York, Western Pennsylvania, Rhode Island, Eastern Tennessee, Eastern Washington, and Washington D.C.

The livestreams will give the public access to real-time courtroom audio on the courts’ designated YouTube channels. Audio streaming of civil proceedings under the pilot requires the parties’ consent and is subject to the presiding judge’s discretion. The pilot excludes trials and civil proceedings involving jurors and witnesses, and also sealed, confidential, and classified materials.

While the pilot temporarily suspends a prohibition on broadcasting federal court proceedings in the designated courts, the livestreams may not be recorded or rebroadcast.

It’s an interesting followup to the now shuttered pilot program that enabled video recording (and subsequent rebroadcasting) of selected district court proceedings. Of course, many state courts implemented video livestreaming months or years ago, without any ill effect.