Kamala Harris doesn’t care about the judiciary

That’s the only reasonable interpretation of her stunning announcement that she will preemptively oppose any federal appellate court nominee put forth by President Trump. This is naked politics in its worst form: in an effort to score points with her political base and show off her willingness to resist the President, she is ready to deprive an entire branch of government the basic resources it needs to operate.

One might conclude that it’s all sound and fury, given that the Republicans control the Senate, and Harris’s Judiciary Committee vote will rarely be dispositive. But what an ugly precedent it sets. Should the junior senator from California succeed in her presidential aspirations, she will have set the stage for others to reject her own nominees sight unseen.

And of course, the judiciary is the body that truly suffers from this silly posturing. There are currently twelve vacancies on the federal circuit courts of appeal, half of which are on Harris’s home circuit, the Ninth Circuit. Those vacancies put pressure on the remaining judges to process heavy dockets with inadequate resources, leading to worse outcomes for criminal defendants, civil litigants, and the entire court system.

Senator Mitch McConnell was rightly criticized for failing to schedule a vote on the nomination of Judge Merrick Garland to the Supreme Court in 2016. That was ugly power politics, and this is no different. Democrats should reject unequivocally Senator Harris’s absurd and counterproductive policy.

Mazie Hirono is wrong, and she’s playing right into Donald Trump’s hands

My latest post at the New England Faculty Blog explains why the efforts of Senate Democrats to grill judicial nominees on their religious beliefs is both wrong as a matter of course, and a strategic blunder that the President is ready to exploit.

Mexican president attacks judges and judicial pay

President Andres Manuel Lopez Obrador of Mexico lashed out against the country’s judiciary late last week, after Mexico’s Supreme Court suspended an austerity law that would have slashed the pay of many public employees.

Obrador, who has been in office for only two weeks, cut his own pay to less than half of his predecessor’s, and pushed through a law stipulating that no public sector employee could make more than the President himself. The Supreme Court suspended the law pending further review.

Obrador subsequently offered the following critique:

“I have no doubt that they’re the best paid public servants in the world,” the 65-year-old told a regular morning news conference on Tuesday, repeating that Mexico’s judges earn 600,000 pesos ($29,619) a month. Last week, before the court ruling, he described such a salary as tantamount to “corruption” in Mexico.

“With all due respect, only Donald Trump earns more than the president of the supreme court,” he added.

That, of course, has no basis in fact. But we’re talking about politics here, so what does that matter?

The court has accused Obrador of trying to undermine judicial independence. He’s not the only one these days.

Chief Justice Roberts: “We do not have Obama judges or Trump judges”

Responding to President Trump’s characterization of a federal district judge who had ruled against the administration’s asylum policy as “an Obama judge,” Chief Justice John Roberts issued a statement rejecting the notion entirely.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In a tweet, the President later responded, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

The situation is a bit more nuanced than either side’s statements suggest, of course. The Chief Justice is correct that the federal judiciary is composed of extraordinary individuals who try to do their best, irrespective of the parties or issues in a case. But each judge also cannot help but apply the law in a manner informed by personal experience and beliefs. It is far too crass for the President to assert that his legal setback was due to an “Obama judge,” but he is not entirely wrong that the judge in question might have viewed the issue differently than some of his peers on the district court bench.

Still, three cheers for the Chief Justice, trying to maintain the legitimacy of the judiciary in the face of ongoing populist attacks.

Federal magistrate judges on the move

Over the past ten days, while everyone has focused on Brett Kavanaugh’s Supreme Court nomination, the Senate has quietly confirmed the appointments of fifteen new federal district judges. Twelve of the fifteen judges were confirmed by voice vote.

Interestingly, this new batch of federal judges already has extraordinary judicial experience. Ten of the fifteen are currently sitting on the bench in a different capacity, and seven are on the federal bench, either as magistrate judges or bankruptcy judges. Each of their respective seats will need to be filled in short order — although they will be filled by local committees rather than presidential nomination. It’s another example of judicial appointment cascades that naturally result from the rapid filling of federal vacancies.

The federal judges moving down the hall to district court chambers include:

  • Terry Moorer (Magistrate Judge, Southern District of Alabama)
  • R. Stan Baker (Magistrate Judge, Southern District of Georgia)
  • Charles Barnes Goodwin (Magistrate Judge, Western District of Oklahoma)
  • Susan Paradise Baxter (Magistrate Judge, Western District of Pennsylvania)
  • C.J. Williams (Magistrate Judge, Southern District of Iowa)
  • Robert Summerhays (Bankruptcy Judge, Western District of Louisiana)
  • Alan Albright (Magistrate Judge, Western District of Texas)

One other note: the Senate also confirmed a batch of six district judges on August 1, and none of them had prior judicial experience. So perhaps the confirmation of so many sitting magistrates at once is purely a coincidence. An interesting trend nonetheless…

Scenes from a tire fire: Day One of the Kavanaugh hearings

Yesterday’s first day of confirmation hearings for Brett Kavanaugh was a colossal embarrassment for everyone, save perhaps the nominee himself. It began with a series of sophomoric interruptions from protesters inside the Senate chamber–an undignified and unfortunate extension of our current national tantrum, which increasingly values volume and resistance over logic or civility. Watching the early minutes of the hearing, I kept waiting for a member of the committee–Chairman Grassley, or for that matter any of the Democrats within whose camp the protesters fell–to make explicit that such interruptions were entirely inappropriate and undignified. I waited in vain. As it was, the ongoing shrieks made it appear that no one really was in control of the moment.

It went largely downhill from there, culminating later in the day in an appalling libel of Judge Kavanaugh’s former clerk Zina Bash by social media trolls on the left, who accused Bash–a Mexican-born granddaughter of Holocaust survivors–of being a white supremacist. The whole event was a sad display of our dysfunctional politics, and a good example of the behavior that judges work to prevent in their own courtrooms.

Indeed, yesterday’s hearing sorely needed a presiding judge–an authority figure with some spine, wisdom, knowledge, and confidence. Nowhere was that better illustrated than during the interminable debate among committee members about the late-produced (or still withheld) documents relating to Judge Kavanaugh’s career. Continue reading “Scenes from a tire fire: Day One of the Kavanaugh hearings”

Kavanaugh hearings livestream

The confirmation hearings for Supreme Court nominee Brett Kavanaugh commenced this morning in Washington, DC. The hearings began with a series of objections by Democratic members of the committee to tens of thousands of pages of documents that have been withheld by the White House.

The livestream of the hearings (from CSPAN) can be found here.