On due process and immigration policy

Two recent news stories have described how judges are pushing back against the Trump Administration’s immigration policies on the grounds that they violate due process.

The Wall Street Journal reports that immigration judges in San Diego are dismissing Migrant Protection Protocols (a/k/a Remain in Mexico) cases at a 33% rate, much higher than any other locality. The San Diego judges have repeatedly ruled that asylum seekers waiting in Mexico were not properly informed of their court dated or other due process rights. Among other examples, a San Diego immigration judge terminated the cases against a family from Honduras after concluding that the U.S. government did not properly fill out their notice to appear, leaving the migrants uninformed about the grounds upon which they could fight their case. While the immigration judges’ decisions do not necessarily improve migrants’ chances at asylum, they do assure that the affected migrants cannot be banned from coming the country for ten years, as is required under current protocol for those who generally fail to show up for hearings.

Meanwhile, in Boston, U.S. District Judge Patti Saris likewise ruled that the government had violated due process in its immigration court hearings, by requiring a detainee at a  bond hearing to show that he or she was not a flight risk. Judge Saris concluded that the  government properly bears the burden of showing, by clear and convincing evidence, that the detainee was dangerous or a flight risk. The ruling was part of a putative class action lawsuit filed by the ACLU and others on behalf of immigration detainees in New England.

I am no expert in immigration law or policy, and I want to take care to distinguish between immigration judges, who are technically employees of the Department of Justice, and life-tenured Third Branch officials like Judge Saris. But it is heartening, at least to me, to see judges at both levels insisting on basic due process for all those haled into the justice system.

More on the Supreme Court’s opacity

Perhaps building on Fix the Court’s announcement of its transparency report cards for the federal courts (the timing seems more than coincidental), the Associated Press has a story describing the areas about which the Supreme Court steadfastly declines to provide basic information about its operations to the public. Some of the examples are silly but illustrative, like refuses to name the company that installed the Court’s new drapes. Others are more serious, like the lack of courtroom cameras and limited details about judicial travel and recusal.

As I noted in a recent post, the right level of court system transparency is that which is calculated to assure the public that the courts are operating in a trustworthy manner. If the Court were more transparent about its most basic operations, it would be in a better position to justify those areas in which secrecy was truly warranted.

What is the right level of court system transparency?

Court transparency is essential, but it cannot be one-size-fits-all proposition. Here’s why.

Several recent articles in the popular press and academic literature have grappled with the issue of transparency. Professor Scott Dodson has written about the “open-courts norm” in the United States which, “accentuated by the First Amendment,” guarantees that criminal (and in most cases, civil) proceedings are open to the public. And, channeling Homer Simpson, Professor David Pozen has described government transparency “as the cause of, and solution to, a remarkable range of problems.” Outside the academic world, organizations such as Fix the Court are issuing their own transparency report cards to draw attention to the refusal of some courts (including the U.S. Supreme Court) to broadcast oral arguments.

These commentators are on to something important. As public organizations, courts are expected to be broadly transparent about their activities. But not all forms of court transparency are the same. Some types of transparency are necessary to the courts’ survival, while other types of transparency would actually undermine the courts’ operations. It is worth considering why.

Continue reading “What is the right level of court system transparency?”

In Memoriam: Mark Cady

The legal world has been shocked by the sudden death of Iowa Chief Justice Mark Cady on Friday. Chief Justice Cady joined the Iowa Supreme Court in 1998 and became Chief Justice in 2011. He was best known for authoring the court’s unanimous opinion in Varnum v. Brien (2009), which declared that prohibitions on same-sex marriage were barred by the Iowa Constitution. Voter dissatisfaction with that decision led to three of Cady’s colleagues not being retained the following year, which (ironically) opened the door for Cady to become Chief Justice in 2011.

Chief Justice Cady is being remembered as a splendid jurist and a dedicated public servant. That was certainly my impression of him on the one occasion I was able to meet him. The court system and public have lost a thoughtful, compassionate, and highly intelligent judge and leader.

The Iowa Supreme Court will take the time to appropriately grieve the loss of its chief justice (and indeed, it has already postponed oral arguments scheduled for this week). At some point, however, the court will also need to turn back to the more mundane task of filling his seat. Members of the court will choose the new chief justice themselves, but not until a new justice has been appointed. That process involves initial review of candidates by a 17-member nominating commission, with the final selection in the hands of the state’s governor, Kim Reynolds. The Des Moines Register has a good primer on the process here.

Deepest condolences to the family and friends of Chief Justice Cady.

New Zealand courts develop video for public outreach and education

In the last 15-20 years, court systems across the United States have slowly begun their own outreach in order to educate the public about their structure and their work. And there is good reason for the courts to take on this mission. The loss of robust civics education in many communities, combined with the flattening and sharpening effects of social media (which combine to eliminate much of the essential context and nuance from stories about the courts), means that court and judges are at increased risk of caricature.

One of the best programs originated in Colorado. Called “Our Courts Colorado,” it sends state judges to speak to schools and community groups about what exactly it is that the courts do. The program tries simultaneously to demystify the judicial system and to educate people about the important work of the courts.

The idea is spreading, slowly but surely, to other common law countries. New Zealand recently unveiled its own nine-minute video describing how the courts work. The video (also called “Our Courts”) is a little dry, but it has many subtle strengths. It shows judges in ordinary business dress, which humanizes them. It clearly explains the different levels within the court system, and the responsibilities of each court. And the video is available in three languages: English, Maori, and Mandarin.

Courts increasingly need to be their own advocates, and that includes assuring basic public familiarity with their work. This is a nice step forward in New Zealand.

Indiana judges involved in late-night White Castle shooting are suspended without pay

The strange saga of three Indiana judges involved in a shooting outside an Indianapolis White Castle last May has come to an end, at least for now. On Tuesday, the Indiana Supreme Court issued an opinion suspending Judges Andrew Adams, Bradley Jacobs, and Sabrina Bell without pay. The court concluded that Adams and Jacobs had engaged in judicial misconduct “by becoming involved in a physical altercation which Judge Adams was criminally charged and convicted,” and that all three judges engaged in judicial misconduct “by appearing in public in an intoxicated state and acting in an injudicious manner.” (Bell apparently gave an obscene gesture to the judges’ assailants, and Adams got involved in a physical fight in which Adams and Jacobs were seriously shot — more details here and here.)

The story has been worth following, and not only because state judges were shot point-blank in a fast food parking lot. The judges’ drunken and disorderly behavior has brought significant reputational harm to the rest of the state judiciary. After all, they were at a state judicial conference when this drunken encounter took place. This situation is far outside the normal range of damage control for most court public information officers.

And then there is the organizational harm in the form of increased workload for the judges’ coworkers. Jacobs and Bell received a 30-day suspension, and Adams 60 days (some of which has already been served). Someone has to pick up the slack with those judges out, and the courts cannot simply hire new staff to handle the dockets. As it is, the county courts in which the judges work are asking senior judges to take up most of the pending cases until the suspended judges return. A sensible use of resources, to be sure, but it still comes with internal costs.

For their part, the suspended judges appeared contrite. I am sure the entire experience for them has been harrowing, humbling, and literally painful.

California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

Grassley to return as Chairman of Senate Judiciary Committee in 2021

The Washington Times reports that Senator Lindsey Graham will step down as Chair of the Senate Judiciary Committee in early 2021, and that Senator Chuck Grassley will again take the Chairman’s gavel. Grassley was instrumental in steering the Supreme Court nominations of Neil Gorsuch and Brett Kavanaugh through the Committee.

Ugly campaign tactics in upstate New York judicial race

Law.com reports on a campaign mailer sent to residents of Sullivan County, New York, which accuses a Democratic judicial candidate of being a socialist and favoring the legalization of drugs. Her Republican opponent has taken full credit for the mailer, which was designed to look like a local newspaper. The accused candidate has denied the allegations of socialism and drug legalization, and has filed a complaint with the state broad of elections.

Judicial candidates acting injudiciously.

 

Party politics and judicial nominations in Michigan

The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.

Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.

The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.

Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.

The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?

It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.