Growing dockets, many vacancies in the federal courts

I have a new op-ed in The Hill, noting the unfortunate conflation of growth in federal case filing, the mass of ongoing judicial vacancies, and ugly partisanship in the judicial confirmation process. Key grafs:

These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.

Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?

Please read the whole thing!

Tweeting judges: a cautionary tale

A little over a year ago, I took a close look at the phenomenon of judges using Twitter. After examining the professional and ethical responsibilities of the judiciary, I concluded that “judges should not be afraid of using Twitter, as long as they employ it appropriately and with discretion.”

That conclusion still holds, and most judges who are regular Twitter users find a way to make it work without compromising their judicial roles.  But Twitter is still a dangerous medium, as Kansas judge Jeffry Jack is learning this week. Judge Jack, currently a Labette County trial judge, has been nominated by Governor Laura Kelly to the state’s Court of Appeals. But his nomination has run into strong opposition from state lawmakers, after they discovered a number of profane and inflammatory tweets from his account, many of which were directed to President Trump and other prominent conservatives.

To be sure, some Republican lawmakers were already predisposed to vote against Jack’s nomination, based on purely partisan factors such as his apparent support for gun control and the Affordable Care Act. But even Democratic legislators were taken aback by the ferocity and crudeness of Jack’s tweets:

Sen. Vic Miller, a Topeka Democrat who attended a Friday news conference where Kelly nominated Jack, said some of the tweets do not demonstrate a proper judicial temperament.

“If these are genuine, I find them to be deeply troubling coming from a sitting judge,” Miller said.

Exactly. Judges, like all people, are entitled to their political views, and there is nothing wrong with holding those views very strongly. But the judiciary depends on its members displaying an even-handed temperament and maintaining a high level of professional behavior even in their personal lives. Judge Jack’s tweets do not display that temperament, and they raise questions not only about his fitness for an appellate court position, but also for maintaining his current trial job.

Yesterday, Governor Kelly withdrew Jack’s nomination. But don’t be surprised if his tweets become an issue if seeks to retain his trial seat when his current term ends in 2020.

This posted was edited on March 20 to correct the spelling of Judge Jack’s name.

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…