The disconnect between what Americans want in their judges and how they choose them

Professor Herbert Kritzer has a very interesting new article in Judicature, exploring the qualities Americans say they want in their state judges. It turns out that professional qualities like reputation for integrity and respect from leaders of the legal community are heavily desired, while political qualities like running for holding office or respect from party leaders is much less desired.

So then why do so many states still choose their judges through partisan, or at least politically influenced, elections? I offer a few thoughts at the IAALS Blog.

Post-COVID, an expanded toolbox for the courts

What will court proceedings look like once the coronivirus pandemic has run its course and society reopens in earnest? Already, courthouses are reopening for jury trials and hearings — a critical step for transparency and due proces. But as Judge Jack Zouhary explains at the IAALS Blog, videoconferencing is not going away. Rather, the courts will likely use videoconferencing for appropriate proceedings — everything from status conferences to settlement discussions.

The expectation of continued videoconferencing is welcome, but it is just the beginning of a larger transformation. The ongoing ability to access the courts through Zoom raises important questions about recording hearings, public transparency, the use of video for purposes of judicial performance evaluation and appeal, and so on. Put differently, new challenges are on the horizon. In the meantime, we are witnessing the true birth of America’s twenty-first century court system.

Today’s COVID responses can improve tomorrow’s judicial performance evaluations

That’s the main thrust of my latest guest post at the IAALS blog. Forced to adopt a wide range of technological resources during the pandemic, courts systems are now better situated to use that technology to improve surveys, observe judicial behavior, and communicate wih the public.

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.

More on California’s relaxed judicial ethics rules

I have a new post up at the IAALS blog that looks more deeply at the changes to California’s Code of Judicial Ethics, which permit judges to comment on pending cases in the context of a recall or retention election. Here’s a taste:

The amended rule allows judges who are under electoral attack to explain and contextualize their decisions to the voters directly. This is especially important for decisions rendered orally from the bench, which—like the rulings that ultimately felled Judges Corey and Persky—were not supplemented with a written account of the judge’s thought process. If a controversial decision was mandated or constrained by existing law, or by formal rules of evidence or procedure, the judge is now free to explain those circumstances to the public. A nuanced legal explanation will still struggle to compete for voter attention in comparison to a simple hashtag, but at least a judge will have some opportunity to advance his or her position directly.

At the same time, by inviting judicial comment on pending cases, the new rule places the overall integrity of the judiciary at greater risk. Traditional rules of judicial conduct prohibit judges from even approaching behavior that might be considered inappropriate for a neutral jurist. Judges, for example, are directed to avoid the appearance of impropriety, to disqualify themselves if there is anything above a de minimis personal interest in the outcome of a case, and to conduct extra-judicial activities so as to “minimize the risk of conflict with obligations of judicial office.” And, of course, judges are traditionally barred from discussing a pending case, lest they compromise the fairness of the proceeding. By consistently erring on the side of impartiality, judicial conduct rules avoid close calls and send a message that judicial integrity is of the utmost importance. The new rule blurs the line between appropriate and inappropriate judicial speech, and may have long-term erosive effects on public faith in the judiciary.

Please read the whole thing!

When “liking” a Facebook post is cause for judicial disqualification

At the IAALS Blog, Maddie Hosack relates the story of a Kentucky judge who was disqualified from presiding over a lawsuit involving the state’s Republican governor, after it was discovered that the judge had liked a Facebook post featuring the governor’s Democratic challenger in the upcoming election. It’s another reminder that judges must be extraordinarily cautious in their use of social media.

 

IAALS releases report and recommendations on judicial discipline

The Institute for the Advancement of the American Legal System (IAALS) has released a new report entitled Recommendations for Judicial Discipline Systems. Authored by University of Arizona law professor Keith Swisher and Brookings Fellow Russell Wheeler, it is a careful and sober analysis of existing judicial discipline systems, with recommendations for improving the process in a way that protects judicial independence and integrity as well as public expectations about efficiency, fairness, and transparency.

Cribbing from the Preface:

Effective judicial discipline is an important part of a trusted and trustworthy court system. The public must know that judicial ethics and violations of the Code of Judicial Conduct are taken seriously. Absent that assurance, the system appears self-serving, protectionist, and even potentially corrupt. And it is not just the reality of the existence of effective systems that matters; it is also the appearance. A wholly effective system with no transparency and no public confidence will not suffice.
To explore the functioning of judicial conduct commissions, in March 2018, IAALS convened a 21-person group of commissioners, commission staff, judges, lawyers, and scholars (identified in Appendix A). They, along with IAALS Executive Director Rebecca Kourlis and a small number of IAALS staff, worked through the agenda in Appendix B. This Report draws on that Convening.