Why trial experience matters for new district judges

Gavel

Federal district court nominee Matthew Spencer Petersen’s embarrassing unfamiliarity with basic trial court and litigation concepts recently led me to observe that concrete trial and pretrial experience should be a baseline requirement for all federal trial court nominees. Not everyone sees it that way. At the National Review, Carrie Severino downplays Peterson’s lack of trial experience, noting that his work at the Federal Election Commission over the past decade “gave him significant exposure to the sort of regulatory cases that the [U.S. District Court for the District of Columbia, the court to which Peterson has been nominated] regularly decides.” And at Prawfsblawg, Howard Wasserman similarly suggested that “[t]here is a benefit to having judges of various backgrounds” on the district court, and that a nominee’s failure to have tried a case should not be disqualifying.  Other commentators have made comparable observations.

I respectfully disagree. Trial judges simply must have real trial experience, for the sake of the judicial institution and its users.

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Romanian parliament passes controversial judicial reforms

Romania’s lower house has passed controversial legislation that will overhaul its justice system — legislation that has been widely criticized as threatening judicial independence and facilitating corruption.

From the Organized Crime and Corruption Reporting Project:

The [Romanian] legislation changes the manner in which magistrates are overseen and chief prosecutors are appointed—under the bill, the president has the right to vet prosecutors.

It also changes the source responsible for compensating for judicial errors from state funds to the judge responsible in sentencing. Experts claim this could possibly affect judges’ biases and tendencies in court rulings.

The lower house approved the bill with 179 out of 269 votes.

The European Commission and thousands of magistrates expressed concern over the legislation, saying it would allow political influence within the judicial system. Thousands of Romanians repeatedly protested against the proposed bill for its alleged power to hinder the fight against corruption. Demonstrations on Sunday drew over 10,000 people to take the streets of Bucharest, Cluj and other major cities.

“Justice, not corruption!” protesters chanted, according to ABC News.

The legislation is still pending in the upper house.

Canada’s Chief Justice emphasizes judicial independence in final press conference

Beverly McLachlin retired from the Supreme Court of Canada this week, after 28 years on the court and 17 years as its chief.  In her final press conference, Chief Justice McLachlin stressed the importance of shielding the judiciary from political interference.  From the National Observer:

“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.

“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”

The Prime Minister’s statement on Chief Justice McLachlin’s retirement is here.

Inexcusable ignorance from a federal judicial nominee

On Wednesday, the Senate Judiciary Committee heard testimony from five more federal district court nominees. Unlike those nominated for the Supreme Court and Courts of Appeal, district court nominees often undergo little serious questioning. Their resumes speak to their qualifications, and the political stakes are lower than with appellate judges.

But basic qualifications are a serious problem for too many Trump nominees. When questioned by Senator John Kennedy, D.C. District nominee Matthew Petersen was unable to identify the most basic legal concepts that a federal judge must contend with on a daily basis.  He admitted to being unfamiliar with the Daubert standard for evidence, Younger and Pullman abstention, and even the current Federal Rules of Civil Procedure. This is not particularly surprising, since he has never tried a case, or even argued a motion, at any level of state or federal court.

Here is the jaw-dropping video, courtesy of Senator Sheldon Whitehouse’s Twitter feed.  Mr. Peterson, a member of the Federal Election Commission since 2008 (and twice its chairman) has since withdrawn his nomination.

Mr. President, how about populating the trial courts with, you know, people who have actually done some trials?

UPDATE/CORRECTION: Peterson’s nomination is still pending as of Friday evening. But it’s hard to imagine it won’t be withdrawn soon.

More learning curves with state court e-filing

Luzerne County, Pennsylvania is the latest court to transition to electronic filing, and it is finding the same immediate advantages, and the same growing pains, as other state courts around the country. On the plus side, e-filing is easier for attorneys who will no longer have to trek to the courthouse to file or review documents. It will also be easier (and cheaper) for the court system, which will move to a state-run electronic records management system. But the transition may make it harder for media to access information on recent filings. A similar problem led one media outlet to file a lawsuit against the Cook County (Illinois) courts earlier this year, citing First Amendment and transparency concerns.

 

 

White House withdraws two federal district court nominees

Two of President Trump’s nominees for federal district judgeships have been withdrawn.  Brett Talley, a nominee for the bench in Alabama, and Jeff Mateer, nominated for the bench in Texas, will not advance.

Talley drew particular criticism over the last several months for his personal conflicts and clear lack of qualifications. The 36-year-old Justice Department attorney has only practiced law for three years and has never tried a case — a monumental shortcoming for a trial court nominee. Talley also failed to disclose that he was married to a White House lawyer, or that he had previously made controversial statements about death row inmates. (Of less direct importance, but no less head-scratching, was the additional revelation that Talley is a “ghost hunter.”) The ABA rated him “unqualified.”

Separately, Mateer came under fire for his statements on homosexuality, same-sex marriage, and transgender children.

The withdrawals come on the heels of Senator Chuck Grassley’s recommendation that the White House “reconsider” both nominations.

Conference Announcement: New England Regional Junior Faculty Scholarship Workshop

NELB logo

New England Law | Boston is pleased to host the New England Regional Junior Faculty Scholarship Workshop on Friday, February 2, 2018.

The workshop will bring together junior law school faculty to present works in progress. The workshop is timed to allow participants to incorporate feedback before the spring article submission cycle, but papers and “ideas in progress” are welcome at any stage of completion. New England Law | Boston will provide a light breakfast and lunch to attendees. There is no fee for attending the workshop, but participants will be responsible for their own travel expenses.

The workshop is open to all non-tenured faculty (including fellows and VAPs) at any law school in the United States and Canada. Each participant will be asked to present his or her own paper or project and to serve as a primary discussant on another attendee’s paper or project. To ensure an atmosphere conducive to lively discussion and constructive feedback, space is limited to twenty participants.  Papers are welcome on any law-related topic, and the conference organizers will strive to group related topics together.

To participate in the workshop, please send an e-mail to Jordy Singer (jsinger@nesl.edu) by Tuesday, January 16, 2018. In the e-mail, please indicate the title of your paper or work in progress, and include a short abstract.  Any questions about the conference can be directed to Jordy Singer at the address above.

The workshop will alternate locations every year in collaboration with the faculty at Albany Law School.

(Bumped 1/15/18)

On paying disgraced judges

Roy Moore, the disgraced judge turned disgraceful Senate candidate, received good news recently when the Retirement Systems of Alabama (RSA) Board approved his $135,000 annual pension, representing 75% of his annual salary before he was suspended from his duties as Alabama Chief Justice in September 2016.  The RSA Board indicated that it has no legal authority to reject or change a judge’s pension.  Moore qualified for the pension under state law due to his previous years of service and age at the time he was suspended.

Meanwhile in Washington, Senator Charles Grassley recalled ex-judge Thomas Porteous’s efforts to fleece taxpayers with his own retirement pension. Porteous was impeached and removed from office in 2010 for taking bribes and engaging in a variety of corrupt acts. Shortly before he was impeached, Porteous tried to claim disability retirement in order to secure a lifetime annual salary of nearly $175,000.

No one could be blamed for wanting to deny retirement payments to judges whose conduct in office was reprehensible, as was the case (in different ways) for Moore and Porteous. The counterargument is that reprehensible conduct cannot be clearly defined, and the ability to remove benefits will become a weapon against judicial independence. Where and how should we draw the line?

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Convicted war criminal commits suicide in open court

Late last month, Slobodan Praljak arrived in court at the Hague to hear the final outcome of his appeal. It was not what he had hoped for. Praljak, convicted in 2013 of war crimes stemming from his role in the civil war in Bosnia, learned that his conviction and sentence would stand.

As the judgment was read, and with cameras rolling, Praljak produced a small vial of liquid and drank it in full view of the judges.  He then announced, “I just drank poison.  I am not a war criminal.  I oppose this conviction.”  The hearing was immediately postponed and Praljak was rushed to the hospital.  He died shortly thereafter.

Dutch police and the International Criminal Tribunal for the former Yugoslavia (ICTY) are now investigating how Praljak smuggled the poison into the courtroom.  The New York Times reports on that question, as well as Praljak’s odd behavior in the days leading up to the hearing:

Defense lawyers at the tribunal say the security arrangements in place for defendants like Mr. Praljak, and the five other men whose sentences were affirmed on Wednesday, were rigorous. They were subjected to body searches when they left their detention center — inside a high-security Dutch prison — and again when they arrived at the tribunal building. But, lawyers acknowledged, body-cavity searches were not part of the routine. And in the months before his final appearance in court, he had seemed to eschew contact with his family and his lawyers.

Nika Pinter, his lead counsel, said in a telephone interview from Zagreb, the Croatian capital, that Mr. Praljak had told his family not to be present at the judgment.

Prajlak had been sentenced to 20 years in prison, and would have been eligible for parole in just two years (accounting for time served).  Perhaps this event will reinforce the need for courthouse security to protect the parties as much as the judges and court staff.