U.S. Senator Jeff Flake (R-AZ) has introduced a bill (one of four currently in Congress) to split the Ninth Circuit Court of Appeals into two circuit courts. Apparently in response to reports that Ninth Circuit judges opposed the bill, Senator Flake asked the Ninth Circuit Executive for clarification on the court’s ability to rule fairly if the legislation were adopted and subsequently challenged. This week, Cathy Catterson, the Circuit Executive of the Ninth Circuit Court of Appeals, responded with an unqualified yes.
Given that bills to split the Ninth Circuit have been introduced many times since 1941, and have never gained serious traction, it is hard to see this as anything more than political posturing. But the regular recurrence of the proposal again illustrates the deep interdependence of the federal courts. Indeed, circuit reorganization is literally an existential issue, affecting active judgeships, resources, case assignments, precedent, and internal court dynamics. The judges naturally have an interest in the outcome, but they lack any direct say in it.
So let’s play out the hypothetical. Could the Ninth Circuit judges rule on the reorganization of their own court? And what would that look like? Continue reading “Could the Ninth Circuit rule on its own split?”
According to this report, the Supreme Court of The Gambia has not convened in nearly two years because it has no judges.
More context on the political situation here.
Starting today. This is a very interesting development for a few reasons. First, it appears to apply to both criminal and civil cases, with exceptions made only for highly sensitive proceedings like juvenile and family cases, criminal pretrial motions, grand jury hearings, probate matters, and trade secret disputes. Second, it is being permitted by state supreme court rule rather than legislation. Third, the cameras will be operated by external media outlets, who may edit the materials as they see fit (although they are cautioned to edit wisely).
I have long been an advocate of the educational and cognitive benefits of broadcasting courtroom proceedings, and was disappointed when the federal pilot project for recording selected civil proceedings was terminated in 2015. Nebraska’s new policy is much more expansive than the federal pilot, and does pose a certain risk that courtroom events will be unfairly or improperly presented, that off-limits personnel (like jurors) will be shown, or that witnesses or lawyers will play to the cameras. But I think the risk is minimal. Continue reading “Nebraska state courts to allow cameras in most proceedings and trials”
The Kentucky Senate has passed a bill that would remove some general trial court judges from existing judicial districts and circuits, and add a roughly equal number of family court judges across the state. The proposed reallocation of judicial resources would be the first in 124 years. If the bill becomes law, it would go into effect in 2020.
The proposed reallocation is based on a weighted caseload study, a tool used by the federal courts (among others) for more than a decade to account for the complexity and expected resource consumption of particular case types. Murder cases and complex commercial disputes tend to consumer more judicial resources than, for example, misdeameanors or garden-variety contract disputes. Weighted caseloads try to account for these differences, and seek to allocate judges in a way that balances out the court system’s overall resources. The National Center for State Courts assisted with the study.
As reported here. The legislation dates to 2015, but it has become freshly salient in light of the Chief Justice’s push for judicial pay hikes and the Governor’s request for across-the-board pay hikes for top elected officials. Key graf:
One downside to Colorado’s approach: It could make it harder for lawmakers to consider judicial pay increases on their own merits. What happens, for instance, if a lawmaker believes judges are underpaid, but feels that lawmaker pay shouldn’t be increased?
This is the first in a series of occasional posts, highlighting scholarship and writings on the relationship between the court system and its external environment.
Tenth Circuit Judge Deanelle Reece Tacha’s 1995 article, Independence of the Judiciary in the Third Century, offers a short and engaging summary of the dependency issues that the federal courts faced at the end of the twentieth century. Much of her description and analysis is equally relevant today.
Judge Tacha notes from the outset that “[e]xamining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense.” It is natural, and in a sense traditional, to think of independence in terms of tenure protection. But while life tenure protects individual judges from the vagaries of the political climate, it does not protect the judiciary as a whole from resource-related strains.
Continue reading “Interdependence Classics: Deanelle Reece Tacha, Independence of the Judiciary for the Third Century”
The Wall Street Journal posted a nice article this weekend on the role of the American bar Association in reviewing and rating federal judicial nominees. (I was quoted, which was also nice!) It gives a good summary of the ABA’s rating process and the history behind it.
The ABA ratings have had their share of controversy, and in an age where everything is increasingly politicized, we should not be surprised if controversy continues. But the ABA’s overt avoidance of political/policy questions, and deliberate focus on the qualities everyone would expect of a good judge (appropriate demeanor, high level of competence, intelligence and legal skills, etc.) make it a worthwhile addition to the overall vetting process. Nor is the ABA alone: similar criteria are used by state judicial nominating commissions across the country.
The ABA’s involvement also underscores an oddity of federal judicial selection: almost everyone gets a say in the timing and substance of judicial nominations except the courts themselves. I’m hard pressed to think of another sizeable organization that is so constrained in hiring its core employees.
If you hit a subscription wall, a PDF of the article is here.
I spent much of my legal career thinking of courts as part of the environment in which others operate. Individuals, businesses, and government agencies looked to the courts to settle specific disputes and provide guidance about the law. Courts therefore influence society every day, both directly and indirectly.
What I failed to fully appreciate is that society strongly influences courts as well. Other government branches, the legal profession, the media, and the public at large affect the way courts operate. The influence is usually not front page news, although it can be when the President publicly challenges a court decision (as the last two presidents have done), or when special interest groups threaten to vote state judges out of office. Frequently the influence is less newsworthy but more pronounced: a new statute that floods the courts with litigation, or delay in filling judicial vacancies, or budget crises that shutter courthouse doors and slow the wheels of justice.
Over the years, I have researched and taught on a wide range of topics related to the judiciary and the court system: judicial selection and evaluation, independence and accountability, judicial decision making, litigation case management, public perceptions of fairness and legitimacy, judicial reputation, bench presence, the exercise of judicial discretion, and ethics. Recently I have come to see that they are all parts of the same elephant. Courts are complex organizations, with challenging missions and multiple audiences. This blog is an effort to track more systematically the ways in which courts interact with their environments.
Courts need resources from the external environment to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
“Interdependence is the reason why nothing comes out quite the way one wants it to.” — Jeffrey Pfeffer and Gerald Salancik
It is a common refrain that the judiciary should be independent: judicial decisions should be fair, impartial, and not influenced by other branches of government or powerful interests. But even courts that are independent in their legal decision making are not fully free from the influences of their environment. Courts are resource-dependent: they rely on legislatures for funding, staffing, and jurisdictional authority. They rely on attorneys for professional support and expertise. They rely on prosecutors and the public to produce a steady stream of cases for the courts to resolve. And they rely on all these groups for their most important resource: legitimacy.
In this sense, courts are more accurately described as interdependent. They need resources from the external environment (organizations and people outside the court system) to survive, and in turn they contribute their own resource–the resolution of disputes through adjudication–to society.
This fact is both obvious and underappreciated. Interdependence affects court structure, administration, organization, strategy, behavior, and external relationships. The primary purpose of this blog is to highlight instances of court interdependence worldwide. And we will try to test out some theories and refine our conclusions as we go along.