What should we expect of Biden when it comes to the judiciary?

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 The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees.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?”

A new day and a plea for unity

The Dean of my law school, Scott Brown, has an op-ed up at The Hill calling for unity as the United States inaugurates Joe Biden as its 46th President. It’s an important message. Over the past decade-plus, Americans’ disagreements over policies and protocols have devolved into distrust and outright demonization of their neighbors and countrymen. It is a depressing and dangerous condition, but it is reversible.

I am not naive enough to think that unity will be achieved simply with a change in administration. Donald Trump was a symptom of our dysfunction, not a cause of it. But Inauguration Day provides an excellent opportunity for us to look at ourselves and ask what we really want to be. I hope for an America where people do differ on policies and conceptions of the good life, where we are squabbling and passionate and relentless about our convictions, but also where fealty to the core values of our country — among them free speech, due process, equal protection, and respect for the rule of law — provides the unshakeable foundation for good faith arguments about our future.

Regular readers of this blog know that I have sometimes been hard on Joe Biden and Kamala Harris. I will continue to do so when I disagree with their policies and actions. But I will also give them credit whenever it is merited, and I will always wish them well. They are now steering a ship of 330 million people, and it is in the interest of the country — indeed, the entire world — that they succeed. May they find that success today and in the coming years.

Enough.

Like all of us, I have been struggling to process the extraordinary events in Washington, DC over the last couple of days. Since this blog was founded in 2017, I have made every effort to afford Donald Trump the respect due to the Presidential office. That form of respect, I felt, was owed to American democracy itself.

But Trump clearly respects neither the office nor American democracy. The insurrectionist mob that attacked the U.S. Capitol on Wednesday had assembled and moved at his direction. And he did virtually nothing to stop the carnage, placing thousands of people directly in harm’s way. It is entirely proper that he be removed from office immediately.

The aftermath of the insurrection offered some comfort for those who still have great faith in America as the beacon of freedom and democracy. I watched the Senate return to its chamber and continue its debate, with members on both sides of the aisle recognizing the gravity of the situation and the particular blessings of liberty that elevated them to membership in the greatest deliberative body in history. Perhaps this shocking moment will remind all of Congress — all of our leaders, elected or unelected — that they bear heavy responsibilites that come with public service, among them reasoned debate and respect for the rule of law. Maybe — just maybe — they will lead rather than snipe. Maybe they will contemplate rather than tweet. Maybe they will show us that they, too, and worthy of the offices with which they have been entrusted.

And what of the judges? A SCOTUSBlog editorial has called on the Supreme Court to issue a statement confirming the basic fact that Joe Biden won the Presidential election. I think that is unlikely, given the Court’s reticence to express any view on an issue not directly before it. But it is nevertheless a good idea. The Justices are Americans first, and through a combination of merit and happenstance they find themselves in a position of prominence at this moment in history. They sat silently while another mob destroyed a federal courthouse in Oregon this summer. It is time to speak up. History will remember what they say — and what they don’t.

Other judges will eventually have their say, as the insurrections are rounded up and brought to justice. I am reminded of a moment nearly seven years ago, when Boston was shaken first by the bombs that detonated at the finish line of the Boston Marathon, and later that week by a manhunt that shut down the city and surrounding towns for an entire day. It was the first time I heard the phrase “shelter in place,” and it was terrifying. When I returned to school after the incident, I struggled for what to say to my students. I decided to read them a portion of the statement given by Judge William Young when he sentenced another terrorist — “shoe bomber” Richard Reid — in 2004. It captured all the feelings I had that day:

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too muich stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down and bring them to justice.

So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.

In a very real sense Trooper Santiago had it right when first you were taken off that plane and [placed] into custody, and you wondered where the press and TV crews were, and [he] said, “you’re no big deal.” You’re no big deal.

What your counsel, your able counsel and what the equally able United States Attorneys have grappled with, and what I have as honestly as I know tried to grapple with, is why you did something so horrific. What was it that eld you here to this courtroom today. I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.

And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.

It seems to me you hate the one thing that to us is the most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not to believe as we individually choose.

Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fully, individually, and discretely.

It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, [and] will go on in their … representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.

Make no mistake, though, It is yet true that we will bear any burden, pay any price, to preserve our freedoms.

Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, not war, individual justice is in fact being done.

The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will.

Custody, Mr. Officer. Stand him down.

Judges speak for our communities, our ideals, and our shared values. Many of them will have the chance to reiterate those ideals, proudly and publicly, in the coming months. It is altogether fitting that they — and we — do so. America is better than this terrible moment. Let’s get our house in order.

Cook County attorney steals a page from Trump’s playbook

Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:

The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.

“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.

In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.

It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.

Judicial Watch head nominated for D.C. judicial commission

Shortly before entering the hospital for treatment for COVID-19 last week, President Trump nominated Tom Fitton, the head of Judicial Watch, to join the D.C. Commission on Judicial Disabilities and Tenure. The Commission oversees the District of Columbia judiciary (essentially D.C.’s equivalent of state judges) and has the power to remove judges for misconduct, as well as physical or mental incapacitation.

Fitton has been outspoken in opposition to the Mueller probe and critical of the Obama Administration, and plainly has ingratiated himself with the President. While Trump has the authority to nominate anyone he likes to the commission, the open partisanship of this choice will do little to build public confidence in the fairness or impartiality of the Commission.

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

The political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

The mortifying state of our Supreme Court confirmation politics

The first of a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

So here we are, not even five years removed from the embarrassing political melee that followed the death of Justice Antonin Scalia, and the same movie is playing out in even more absurd fashion.

Senator Mitch McConnell (R-KY) is working the Republican back benches to ensure a yes vote for the President’s Supreme Court nominee — never mind that there is, as of yet, no nominee to vote on. This is the same Senator McConnell who refused to even hold a hearing for then-nominee Merrick Garland in 2016 on the flimsy pretext that it was too late into a election year. To call McConnell’s reversal hypocritical is an insult to hypocrisy.

Remarkably, the Democrats have acquitted themselves even more poorly. After hectoring the American public in 2016 with the smug insistence that the Senate must vote on the Garland nomination (using the Twitter hashtag #DoYourJob), and after four years of accusing the Republicans of “stealing” the seat by not holding a hearing for Garland, the Democrats now declare —with no apparent sense of irony — that they will do everything possible to prevent a vote on the as-yet-unnamed nominee. The charge has been led, most distressingly, by the Democrats’ own Vice Presidential candidate Kamala Harris, who previously pledged to shirk her Senate duties by refusing in advance to vote for any Trump appellate court nominee, and who now promises an extended vacancy crisis in connection with her efforts to raise campaign funds

How did we get here? Continue reading “The mortifying state of our Supreme Court confirmation politics”

Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?

A guest post by Lawrence Friedman

In his recent essay, The cravenness of Democratic “Court reform” proposals, Jordan Singer responds to the left-leaning critics of the Supreme Court term just ended who have lamented the results in cases on choice, immigration and employment discrimination—not because the Court, led by Chief Justice John Roberts, failed to reach the results these critics support, but because it did. Democratic pollster Mark Mellman, for example, concludes that Roberts, “by refusing to inflame passions further,” may have stemmed “the tide and accomplish[ed] the coveted goal of his GOP critics—preserving the Court’s current conservative majority.” And law professors Kent Greenfield and Adam Winkler prophecy “the moderation shown by Roberts has all but guaranteed a conservative Supreme Court for a generation.”

As Singer explains, these critiques reveal a Democratic goal since the failed Merrick Garland nomination in 2016: “to punish Mitch McConnell and Donald Trump by radically restructuring the Court itself.” The restructuring plans have taken many forms, from imposing term limits on Supreme Court justices to expanding the number of justices who sit on the high court. These reform efforts turn on the belief that, since McConnell and the Republicans refused even to consider Garland, the Court’s legitimacy has suffered—with decisionmaking in controversial cases compounding the problem. The argument for Court reform falters, however, in the face of outcomes that tend to match the views of a majority of Americans – as they did this term in cases concerning choice, immigration and employment discrimination, in all of which Chief Justice Roberts either wrote or sided with the majority.

Professing concerns about the legitimacy of the Court’s decisonmaking is a broad brush with which to paint, and such concerns tend to be overblown: an institution that has survived decisions in cases like Brown v. Board of Education, Bush v. Gore, and District of Columbia v. Heller is not likely to be cast aside by the American people any time soon. Still, there is a tendency among the Court’s current membership that should be cause for genuine concern: the near-abandonment in cases involving the structural constitution and the separation of powers of any sense of judicial restraint. Continue reading “Does the Roberts Court’s view of executive and legislative power present an alternative case for court reform?”

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”