Interdependence classics: Justin Crowe, The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft

I have recently become fascinated with the work of William Howard Taft, a man who approached the Presidency like a judge and the Chief Justiceship like an executive. Taft was an extraordinary judicial reformer, not because of his judicial opinions (although he authored hundreds during his time on the Court) but because of the “executive principle” he brought to managing the federal court system. In just nine years as Chief Justice, Taft personally lobbied for and secured legislation increasing the number of federal judges, dramatically reducing the Supreme Court’s mandatory caseload, and authorizing the courts to developing internal administration through what would become the Judicial Conference of the United States. Taft also set the groundwork for the Rules Enabling Act (allowing the federal courts to develop their own uniform procedural and evidentiary rules).

Professor Justin Crowe’s article, The Forging of Judicial Autonomy, vividly and concisely describes how Taft turned a highly dependent, decentralized federal court system into a modern organization in less than a decade. Crowe focuses his article around two major pieces of legislation: a 1922 Act which added 24 new federal judges and created the Judicial Conference’s predecessor, the Conference of Senior Circuit Judges; and the Judiciary Act of 1925, which eliminated most of the Supreme Court’s obligatory caseload. These Acts were not, Crowe argues, inevitable — or even desired — by Congress. Rather, they were the result of a “judicial autonomy” forged by Taft, who combined relentless entrepreneurship with existing social networks and willingness to embrace modern management theories.

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Indiana legislature considers expanding merit selection for state judges

Merit selection refers to a method of choosing state judges through a nominating commission, which typically selects three candidates and forwards the names to the governor for final selection.  Judges chosen through merit selection are therefore pre-vetted for qualifications, skill, and judicial temperament.  Most states with merit selection protect accountability to the public by appointing judges to set terms on the bench, after which they must seek reappointment or retention before the voters.

I have long championed merit selection as the best process for balancing quality judges and public accountability.  The process is not perfect, but if done thoughtfully — with a balanced and inclusive nominating commission, sufficiently lengthy terms to allow a judge to grow professionally on the bench, and retention elections coupled with a transparent judicial evaluation process — they have proven to be very effective.

Many states around the country choose some or all of their judges through merit selection.  And Indiana, which uses merit selection for trial judges in three large counties (Allen, Lake, and St. Joseph), is now poised to expand the system to Marion County as well.

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Florida judge admits ethics violations in election campaign

From the Palm Beach Post: Santino says she broke rules in election but still fit to be judge.

The judge, who was elected in November, is facing disciplinary action for four ethics violations, stemming from campaign statements that impugned the integrity of her opponent and the entire judicial process. Of note, Judge Santino sent a campaign email disparaging her opponent’s criminal defense work and is tied to a Facebook page proclaiming that her opponent “has made a lot of money trying to free Palm Beach County’s worst criminals.”

Judge Santino faces a disciplinary hearing before another state judge this week, after which recommendations will be made to the state supreme court. From an organizational perspective, this is another interesting example of the courts policing the actions of their own members even when those actions fall outside the strict definition of judicial activity.

The case, alas, is also another example of how contested judicial elections can compromise both the actual and perceived impartiality of judges. Most judges, of course, never run into ethical issues of this type. But elections vastly increase the risk of such ethical violations, and the misbehavior of a handful of judges or judicial candidates can have damaging ripple effects on the public trust of the entire judiciary.

Federal judge who blocked executive order receives death threats

Several news outlets have reported that Judge Derrick Watson, of the United States District Court for the District of Hawaii, has received death threats in the wake of his March 15 order enjoining the enforcement of President Trump’s revised travel ban.

This is not the first time American judges have been threatened, and certainly won’t be the last.  Fortunately, the U.S. Marshals and local police take such threats very seriously.

California courts to pilot video remote interpreting

According to this story, California will pilot the use of the video remote interpreting (VRI) technology in the Superior Courts of Merced, Sacramento, and Ventura.  The pilot, designed to cope with what is described as a “severe shortage” of qualified court interpreters in the state, will begin in July.

New release of federal criminal justice data — only 3% of cases go to trial

The Bureau of Justice Statistics has released its newest data on the federal criminal justice system, from 2013-14.  Among the highlights:

  • During 2014, federal law enforcement made 165,265 arrests, a 12% decrease from 188,164 arrests in 2013.
  • In 2014, the five federal judicial districts along the U.S.-Mexico border accounted for 61% of federal arrests, 55% of suspects investigated, and 39% of offenders sentenced to federal prison.
  • There were 81,881 federal immigration arrests made in 2014—one-half of all federal arrests.
  • Ninety-one percent of felons in cases terminated in U.S. district court in 2014 were convicted as the result of a guilty plea, 6% were dismissed, and 3% received a jury or bench trial.

While the data themselves are about two years behind, they obviously inform current policy debates.  The entire statistical package also gives a better sense of the coordination between the federal courts and the DEA, U.S. Marshals, federal prison system, and federal prosecutors.

Delaware courts embracing private sector management techniques

Buried in this story about the University of Delaware’s partnership with the state court system to create a fellows program for graduate students is a most interesting point:

In 2014, the judicial branch entered a 10-year partnership with the Alfred Lerner College of Business and Economics to improve court operations using private-sector techniques.

As part of the effort, many in the courts were trained in Lean Six Sigma, a methodology focused on removing waste from the processes. The courts said this helped save the judicial branch and partner agencies more than 4,250 staff hours.

Courts have been looking to private sector organizations for management techniques for  a century, when Chief Justice Taft began infusing the federal courts with “executive principle.” But until this story broke, I was admittedly unaware that Six Sigma techniques were being applied directly in state court systems.

More background on the court-university partnership is here.