Stern on Judicial Candidates’ Right to Lie

Nat Stern (Florida State) has posted his new article, Judicial Candidates’ Right to Lie, on SSRN.  Here is the abstract:

A large majority of state judges are chosen through some form of popular election. In Republican Party of Minnesota v. White, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source — judicial elections themselves.

The President’s unforced error on ABA vetting

There are more than 100 openings on the federal district courts, most of which will be filled by nominees who have never held judicial office. A strong early rating from the ABA would not only smooth the confirmation process, but would send a positive signal to the public.

President Trump has apparently decided not to invite the American Bar Association’s Standing Committee on the Judiciary to review the professional qualifications of his lower federal judicial nominees, stating that “the administration does ‘not intend to give any professional organizations special access to our nominees.'”  This move is not unprecedented, but it is deeply short-sighted.

Continue reading “The President’s unforced error on ABA vetting”

UK judges address attacks by populist press

The High Court of England and Wales ruled in November that the United Kingdom could not trigger “Brexit” without parliamentary assent.  The decision was affirmed in January, but anger about the additional procedural requirement remained. Now, the members of the High Court are now speaking out about the nature of the attacks leveled on them by the British press in the wake of the ruling.

Key bit:

“Criticism is very healthy. If you have got something wrong, fine, but there is a difference between criticism and abuse,” Thomas told the same committee a week ago.  “It’s the only time in the whole of my judicial career that I’ve had to ask for the police to give us a measure of advice and protection in relation to the emotions that were being stirred up,” he said.

What just happened? March 2017 roundup

The month in a nutshell: courts keep their heads down as legislatures awaken

The most prominent news of the last month centered on the confirmation hearings of Judge Neil Gorsuch to the U.S. Supreme Court and President Trump’s social media pronouncements about federal judges. Beyond the front page headlines, however, courts at every level were confronting challenges to their structure, autonomy, and legitimacy.  Continue reading “What just happened? March 2017 roundup”

Federal criminal prosecutions fall to lowest level since 1997

The Pew Research Center breaks down the latest statistics.  The drop was fueled by significant declines in prosecutions for drug, immigration, and property offenses.

The 3% drop in criminal filings last year was offset by a 5% increase in federal civil filings, so the federal district courts overall experienced a 3% increase in filings for Fiscal Year 2016.

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.

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

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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