Federal courts ask Congress for coronavirus assistance

The federal judiciary has asked Congress for $36.6 million in supplemental funding to work through the coronavirus pandemic. The money would be used for cleaning courthouses, enhanced medical screening, information technology updates, and other IT infrastructure, among other things. The judiciary is also seeking new legislation to toll certain bankruptcy deadlines, add new temporary judgeships, and protect litigants and detainees from unnecessary coronavirus exposure.

The letter setting out the requests is here.

The federal courts try to self-censor. A federal judge says no.

Hoping not to be bullied is not a worthy strategy for a co-equal branch of government.

A little over two years ago, the Administrative Office of the United States Courts (AO) issued a new policy which barred its employees and staff from engaging in partisan political activity, including posting yard signs or making ordinary campaign donations. I predicted at the time that the First Amendment implications would likely turn the new policy into a headache for the AO.

And so it did. In May of 2018, two AO employees filed a complaint in the U.S. District Court for the District of Columbia, alleging that the policy violated their First Amendment right to engage in core political speech. Last week, the court agreed, granting summary judgment to the plaintiffs and promising to enter a permanent injunction preventing the AO from applying its policies to most of its employees. The court’s opinion is eye-opening, both for the district judge’s robust defense of First Amendment rights and for the AO’s cowardly view of the judiciary’s place in American society.

Continue reading “The federal courts try to self-censor. A federal judge says no.”

The Trump Records Requests and the Potential for Judicial Intrusion into the Legislative Process

A guest post by Lawrence Friedman

Few observers could have been surprised by the federal appeals court’s decision in Trump v. Mazars USA, concluding that President Donald Trump cannot stop his accounting firm from producing financial information about him in response to a subpoena from the House Committee on Oversight and Reform. In fact, Trump has lost every case in which access to his personal financial records has been sought. The Supreme Court has agreed to review these decisions, with oral argument scheduled for March, and the Mazars USA case may prove the most intriguing—especially to those justices who prefer an originalist approach to constitutional interpretation.

The majority in Mazars USA validated the House Committee’s rationale for the subpoena to Trump’s accountants: the information about the president’s finances was necessary to further Congress’s legitimate legislative objectives. It is well settled that congressional committees may investigate matters upon which Congress can legislate. Through investigation, Congress may determine whether existing laws are sufficient, and whether they are being adequately enforced. The results of an investigation may persuade Congress to strengthen or modify existing laws—or propose new regulatory requirements. The request of Trump’s accounting firm, for example, related to the congressional interest in the efficacy of existing financial disclosure laws.

Given that the power to investigate is, as the Supreme Court has put it, “inherent in the legislative process,” courts generally have deferred to Congress’s stated rationale for seeking certain information in connection with a particular inquiry. Indeed, Congress enjoys relatively wide discretion to decide how best to go about the business of lawmaking. Such judicial deference appropriately leaves the democratic process to serve as the check on the legitimacy of Congress’s exercise of its investigative and policymaking authority.

These principles suggest the majority in Mazars USA made the right call in respect to the information held by Trump’s accountants, but Judge Neomi Rao’s dissenting opinion is still noteworthy. Relying upon text, history and the views of the framers, Rao sees a defined and judicially enforceable line: when a congressional inquiry touches on potential presidential wrongdoing, she reasons, “it does not matter whether the investigation also has a legislative purpose,” because “[a]llegations that an impeachable official acted unlawfully must be pursued through impeachment.” Rao accordingly would have held that investigations that turn on potential criminal conduct by the president or executive branch officials can only be pursued through the impeachment process.

Rao views a strict separation between legislative and impeachment authority as necessary to ensure that the House of Representatives does not escape the accountability associated with an impeachment inquiry. It is not entirely clear why the people would be more likely to hold House members accountable for the decision to undertake an impeachment inquiry as opposed to purely legislative investigation. After all, regardless of the House’s ends, its members serve the smallest number of constituents, hold office for the shortest terms of any elected federal official and, as a result, are the most responsive to the will of the people—which is true no matter the substance of any action the House undertakes.

Nonetheless, Rao’s originalist approach might well attract the attention of justices like Clarence Thomas and Neil Gorsuch. Were a majority of the Supreme Court to embrace her categorical division between legislative and impeachment investigations, Congress would face practical questions about how to exercise its lawmaking authority. On the one hand, House majorities could continue to pursue legislative investigations, and when they uncover evidence of illegal conduct by executive branch officials, the investigations could be reconstituted as impeachment inquiries. On the other, House majorities could decide to make impeachment the default mode of congressional investigation, regardless where it might lead—which could see the House operating in impeachment mode pretty much all the time.

In the end, no matter the label attached to the way in which the House chooses to pursue its constitutional lawmaking functions, the structural incentives for members of the majority to respond to constituent demands would remain unchanged. House investigations might proceed under different headings, but the questions – and the goals –in most instances would look quite familiar.

Through it all, moreover, Rao’s framework would appear to contemplate the courts policing the line between legislative and impeachment investigations. Judges, in other words, could be reviewing how duly elected members of Congress choose to go about pursuing their official responsibilities. To borrow Chief Justice John Roberts’s favorite analogy, such an approach could empower judicial umpires to go beyond simply calling balls and strikes and, instead, second-guess a manager’s strategic choices. Perhaps needless to say, such a development risks potentially dangerous judicial intrusion into the functioning of a coordinate branch of government.

California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

Grassley to return as Chairman of Senate Judiciary Committee in 2021

The Washington Times reports that Senator Lindsey Graham will step down as Chair of the Senate Judiciary Committee in early 2021, and that Senator Chuck Grassley will again take the Chairman’s gavel. Grassley was instrumental in steering the Supreme Court nominations of Neil Gorsuch and Brett Kavanaugh through the Committee.

Party politics and judicial nominations in Michigan

The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.

Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.

The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.

Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.

The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?

It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.

New bill would increase disclosures regarding federal judicial travel

Senator Sheldon Whitehouse (D-RI) has introduced a new bill in the Senate, dubbed the Judicial Travel Accountability Act. (It has not yet received a number.) The bill would increase the financial disclosures put on federal judges regarding their travel. Bloomberg Law reports:

The Ethics in Government Act requires that judges’ disclosures include only the identity of the source and a brief description of reimbursements over $390. But judges don’t have to identify the dollar value of the reimbursement, and are exempted entirely from reporting any gifts in the form of “food, lodging, or entertainment received as personal hospitality,” Whitehouse said in a news release.

The Judicial Travel Accountability Act would require “judicial officers’” financial disclosure statements to include the dollar amount of transportation, lodging, and meal expense reimbursements and gifts, as well as a detailed description of any meetings and events attended.

The bill calls for disclosures to be filed within 15 days of a trip and to be made available on a public website. The Supreme Court doesn’t post its financial disclosures online and they are made available only once a year

In an ordinary political cycle, it would be easier to see this is as a truly bipartisan effort to promote public confidence in the judiciary, akin perhaps to the regularly introduced “Sunshine in the Courtroom” Acts that seek to bring cameras and other transparency mechanisms into the courthouse. But this is not an ordinary political cycle, and it is hard to see this bill as anything other than a political ploy. Start with Senator Whitehouse, whose public treatment of the Supreme Court has become increasingly unhinged as of late, and who chose to begin his remarks with a focus on the Supreme Court even though its Justices represent less than one-tenth of one percent of the entire federal judiciary. Then there is the list of co-sponsors: 12 Democrats (including two current presidential hopefuls) and only one Republican. It’s not difficult to see this bill as primarily an effort to turn the courts into a political football once again.

It is a dangerous thing when politicians drag the court system into their partisan squabbles, and it is in my view a significant reason why the public increasingly sees the courts as political. But while the federal courts cannot stop Congress from introducing pointed legislation, it can render such legislative chicanery moot by adopting its own reporting practices. Put differently, if the court system itself required judges to report more fully their travel junkets, rather than waiting for Congress to mandate it, courts would reap the benefits of increased public confidence and would not find themselves dragged into the political muck. More on this point in a future post.