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”

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

A transparent media attempt to politicize judicial resources

As it does every year, the Administrative Office of the U.S. Courts has propounded a budget request to Congress for the upcoming fiscal year. The new request seeks a 4.4% increase in the overall judicial budget, with the money helping to cover Congressionally approved judicial pay raises, updating older facilities, and implementing federal legislation concerning the courts. More money is also needed for base salaries because many federal judicial vacancies — especially at the district court level — have been filled over the past year.

But that didn’t stop the reporters and editors at Bloomberg Law from telling us what the increase is really about: Donald Trump. In a story titled, Judiciary Requests More Money for Trump Judges, Bloomberg asserts:

President Donald Trump’s judicial appointments are among the factors contributing to the federal judiciary’s request to Congress for a 4.4% increase in its budget.

Trump has moved aggressively to fill the federal judiciary with conservatives. So far, that’s resulted in 188 judicial appointees to federal district and appeals courts, and two justices on the Supreme Court: Brett Kavanaugh and Neil Gorsuch.

The judiciary’s requested funding boost for the next fiscal year takes into account money needed to provide salary and benefits for a higher-than-expected volume of judges confirmed and their chambers staff, a judiciary spokesman said.

This is remarkably lazy writing and editing. The headline is slanted — the money is for the workings of the entire judiciary, not just “Trump Judges” — and the opening grafs suggest that there is something unseemly about the President and Senate fulfilling their constitutional roles to populate the judiciary.

There is probably little practical harm that will come out of this sloppy article, but the public — and the courts — deserve better.

Warren’s attempt to question third branch legitimacy fails spectacularly

The American political scene is moving at lightning speed these days, with impeachment proceedings, the Iowa caucuses, the State of the Union, and the government’s response to the coronavirus threat all competing for our attention. But I would be remiss if I failed to note the outrageous question that Senator Elizabeth Warren posed during the impeachment trial last week.

All questions, of course, were required to be written on notecards and passed to Chief Justice Roberts, who read them aloud for response by either the House Managers or the President’s lawyers. Here is what Warren asked:

“At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”

Oh, good grief. Roberts has to preside over the trial — it’s right in the Constitution. Calling into question the legitimacy of the entire Supreme Court and the Constitution during a partisan political skirmish was both cheap politics and degrading to the very foundation of American democracy. And she was roundly scolded for the stunt, from observers on all sides of the political spectrum.

This blog has chastised the President and many others for their similar tendencies to attack the courts’ legitimacy when they cannot achieve their political objectives. Let’s add Elizabeth Warren to that list as well. If she truly wants to improve Americans’ faith in government, perhaps she could start by showing appropriate respect for its institutions and design.

“Myths and Realities” about Trump’s judicial appointments

Many politicians, advocacy groups, and journalists have written about President Trump’s federal judicial appointments over his first three years, with the dominant narrative being that he has transformed the judiciary by appointing more judges, with more far-right leaning ideologies, than any President in history.

Russell Wheeler looks at the data underlying these assertions, and finds the story to be much more nuanced. As with everything Russell writes, the post is worth an immediate and careful read.

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.

Thanks, Obama! More on how due process is eroded by immigration policies

I recently wrote about how the Trump Administration’s immigration policies are drawing pushback from both Article III and immigration judges on the grounds that they violate due process (including failing to give migrants proper notice of the grounds on which they could fight their cases). But disrespect for migrants’ due process rights are not limited to the current administration. Texas Public Radio reports that back in 2014, the Obama Administration decided to fast-track immigration cases involving unaccompanied minors. That decision forced the immigration courts to delay thousands of other pending cases, which the Obama Administration arbitrarily rescheduled for November 29, 2019 — five years into the future. When the day arrived this past Friday, more than 100 migrants showed up for their hearings, only to learn that they had been postponed again — until 2021.

Delaying cases is a due process violation every bit as tragic as failure to give proper notice, and both the Trump and Obama administrations are guilty of using immigration courts to score political points.