The new administration is borrowing from Trump’s playbook, not Obama’s.
Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.
Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.
Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”
The American Bar Association House of Delegates has passed a resolution regarding the use of remote proceedings. The resolution attempts to balance the courts’ need to move forward with their dockets, parties’ entitlement to due process, and the public right to access. Some key points:
FURTHER RESOLVED, That the American Bar Association urges that any authorization of mandatory use of virtual and remote court proceedings during the COVID-19 pandemic continue for as short a time as possible and in no event longer than the duration of the declaration of emergency issued in the jurisdiction;
FURTHER RESOLVED, That the American Bar Association urges that use of virtual or remote court proceedings be permitted when litigants have consented to the use of such procedures, including being offered a delay until a safe, in-person proceeding can be held;
FURTHER RESOLVED, That the American Bar Association urges that all virtual or remote court proceedings be tailored to the needs of participants and take into account the type of case and proceeding to be conducted, the participants involved, and whether participants are likely to be represented by counsel…
FURTHER RESOLVED, That the American Bar Association urges that advance notice be provided to the public of all virtual or remote proceedings and that full and meaningful public access to such proceedings be guaranteed, while also protecting the privacy of those proceedings legally exempted from public access…
The entire resolution can be found here.
A glance at the recent developments, and what to look for in the future.
It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.
Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”
This week saw the formal announcement of two new efforts to modernize state court systems through technological improvements. The Pew Charitable Trusts announced an initiative, in partnership with the National Center for State Courts, American Bar Association, state court administrators, and private tech companies, to “modernize key aspects of the nation’s civil legal system and make it more accessible to the public.” Among the projects are developing more online tools for litigants and the public; using artificial intelligence to understand common language legal questions; and expanding online dispute resolution.
Separately, the Institute for the Advancement of the American Legal System (IAALS) released a new report entitled Eighteen Ways Courts Should Use Technology to Better Serve Their Customers. Among the report’s recommendations are:
- Ensure court information and services are accessible through smartphones and ensure up-to-date wayfinding.
- Allow court users to present photos, videos, and other information from their smartphones in court.
- Enable court users to appear by telephone or video conference.
- Facilitate easier scheduling of hearings using common digital calendar platforms.
- Allow online payment of fees and other costs.
- Create opportunities for users to access forms and other case-related information remotely and simplify the completion and filing of those forms, including electronic filing, and eliminate notarization requirements.
- Deliver automated court messaging about upcoming hearings or missed events and allow that messaging to help guide users through the process.
Substantively, both projects are directly responsive to an increasing number of self-represented litigants who desperately need help navigating the legal process. In the spirit of this blog, the projects also demonstrate how the courts can partner with organizations in their immediate environment to improve their outreach and service.
The latest ABA essay on judicial independence comes from Justice Ming Chin of the California Supreme Court.
The latest essay in the ABA’s series on judicial independence comes from Edward (Ned) Madeira, the former chair of the Commission on Separation of Powers and Judicial Independence and the Commission on the 21st Century Judiciary.
Just in time for Law Day, American Bar Association President Hilarie Bass offers up a strong defense of judicial independence, and a sharp account of the ABA’s historical efforts to protect that independence. Well worth the read.
The latest essay in the ABA series on judicial independence comes from Pennsylvania attorney Michael Reed, who discusses efforts to remove or isolate judges for political reasons. His short essay ranges from the Court-packing scheme of the 1930s to the current attempt to impeach justices in Pennsylvania.
The latest in the American Bar Association series on judicial independence looks at responding to attacks on judges — whether through television ads, social media posts, or otherwise. ABA President-elect Robert Carlson’s piece is here.
The American Bar Association has commenced an essay series on judicial independence, soliciting different perspectives from a variety of prominent legal thinkers. The first contribution, from former ABA President James Silkenat, is here.