IAALS seeks new CEO

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS), one of the premier legal reform organizations in the United States, is seeking a new CEO. The full details can be found here.

As a proud alumnus of, and occasional ongoing contributor to, the IAALS family, I can confirm first-hand that this is a remarkable organization and a remarkable opportunity. It will take an equally remarkable person to take IAALS into the 2020s and beyond, but I encourage all qualified people to give it serious consideration.

The cravenness of Democratic “Court reform” proposals

The Supreme Court is doing its job and winning public support. Some Democrats are despondent.

Last week, The Hill published an op-ed by by Democratic pollster Mark Mellman, lamenting the Supreme Court’s recent decisions on abortion rights, immigration, and workplace discrimination. Each of these cases resulted in what might be termed a liberal victory, in the sense that the outcome was in line with prevailing left-wing views in the United States. One might think of this as a cause for celebration among the Democratic establishment. But not for Mellman, who with a tinge of sadness concluded that “by refusing to inflame passions further, [Chief] Justice Roberts may stem the tide and accomplish the coveted goal of his GOP critics — preserving the Court’s current conservative majority.”

A second op-ed, also published in The Hill (on the same day, in fact!) took a more academic tone but made essentially the same point as Mellman. Law professors Kent Greenfield and Adam Winkler argued that the Chief Justice’s “moves to the middle will likely assist conservatives in the long run by dooming plans by Democrats the pack the Supreme Court with justices.” 

Both articles expose the long game the Democrats have been playing with the Supreme Court since the failed Merrick Garland nomination in 2016. It is a game to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself. And it is a game that has been undermined by the Court’s own decency and independence.
Continue reading “The cravenness of Democratic “Court reform” proposals”

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

Justice At Stake closes its doors

Today brings the sad news that Justice At Stake, an important court reform group of the past 16 years, has closed down due to funding woes.  JAS had moved in recent years toward more explicit advocacy of merit selection, which did not sit well with some in its core donor base.

I had the great pleasure of working with Justice At Stake during my time with the Institute for the Advancement of the American Legal System (IAALS), and I was consistently impressed how deftly and charismatically its leadership brought together reform groups from around the country.  I made friends and colleagues from the Brennan Center for Justice, American Judicature Society, Lambda Legal, Pennsylvanians for Modern Courts, National Center for State Courts, and countless other organizations.  Even when I disagreed with certain individuals on other matters of policy, I was always heartened by our shared conviction that the American courts deserved both reform and vigorous defense.  It was a testament to the JAS leadership that we were always kept focused and on track.  Its legacy is sure to last.