Experienced judge tapped to fill seat on Illinois Supreme Court

Earlier this month, Illinois Supreme Court Justice Thomas Kilbride became the first member of that court to lose a retention election. More than 57% of voters elected to retain Kilbride on the court, but because of the state’s unique rules requiring more than 60% of voters to support retention, Kilbride lost his seat.

Now his replacement has been named. The state supreme court has appointed Judge Robert Carter, a veteran of the state bench for more than 40 years, to complete Kilbride’s term through the 2022 election.

Carter seems to be an excellent choice. He is highly experienced, and has stated that he has no interest in running for the seat when it comes up again in two years. That will allow for a fresh start among candidates who want a full term. In this sense, Carter is playing the role akin to a U.S. Senator temporarily appointed by the state’s governor to fill a vacancy.

Electoral chickens come home to roost in North Carolina courts

Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.

The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.

There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).

So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).

Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.

 

How far can Congress probe the judicial thought process?

Over at the Volokh Conspiracy, Josh Blackman has a fascinating post (really, a series of posts) about the efforts of ten Democratic Senators to force two Eleventh Circuit judges to “explain” their involvement in Florida’s felon disenfranchisement cases.

The brief background is this: the Florida Supreme Court heard oral argument on a challenge to state legislation conditioning the restoration of a convicted felon’s right to vote on the payment of legal financial obligations. Two of the Justices on the court at the time, Robert Luck and Barbara Lagoa, had been nominated for seats on the Eleventh Circuit Court of Appeals. Both Justices asked questions during oral argument, but were confirmed to the Eleventh Circuit just weeks later. Accordingly, neither Justice had any role in the outcome of the case.

On July 15 the plaintiffs, having sought review in federal court, requested that both judges recuse themselves from the Eleventh Circuit’s deliberations. The request was grounded on the fact that the judges had merely asked questions during oral argument while on the Florida Supreme Court, even though they had taken no part in the decision. (This was factually reminiscent of the Ninth Circuit case of Yovino v. Rizo, involving a judge who had voted on a case but died before it was announced; here, however, the judges did not vote at all.)

Professor Blackman had a very sensible take whether recusal was necessary in the Eleventh Circuit case:

Judges are allowed to change their views. And that malleability is a good thing. I would be troubled if judges walked into arguments with a set predisposition, that could not be disturbed.

Yovino demonstrates that a Judge’s questions during oral arguments, and even a conference vote, are not “immutable.” Judges are allowed to keep an open mind till late in the game. These preliminary matters are not enough to question a judge’s impartiality. The only decision that counts is the final order. Judges Luck and Lagoa did not participate in the Florida Supreme Court’s published decision. Therefore, they are not disqualified.

But it’s 2020, and legal arguments aren’t good enough for the political class. Hence, the subpoenas. Blackman’s take (which you should read in its entirety) concludes:

I have serious doubts about whether Congress has the power to subpoena a judge to testify about internal judicial matters. I think Congress could justify that subpoena as part of an impeachment inquiry. But a general need for information to craft legislation would not be suitable.

I am not a constitutional scholar, but that strikes me as correct.

A brief history of New Jersey Supreme Court appointments

The New Jersey Globe has put together a useful series of articles on gubernatorial appointments to the state supreme court since 1947. Garden Staters and those interested in the court’s history (and its political dimensions) should take notice.

Alfred Driscoll’s First Seven Picks

The Meyner Court

The Cahill Court

The Byrne Court

The Kean Court

The Whitman Court

The McGreevy and Corzine Courts

The Christie Court

 

Iowa gets new Chief Justice

The Supreme Court of Iowa has selected Justice Susan Christensen to be its next Chief Justice. She will take over duties from Acting Chief Justice David Wiggins, who is set to retire from the court in mid-March. Wiggins stepped into the interim role after the sudden death of Chief Justice Mark Cady last November.

Christensen will administer to and preside over a five-member court that has been radically remade in the last few years. Governor Kim Reynolds has already appointed three members of the court since 2017, and the Wiggins retirement will provide an opportunity to appoint a fourth justice.

“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.

A swap of judges to keep the machinery of justice moving

This is an interesting story from Owensboro, Kentucky. Judge Joe Castlen retired from the local Circuit Court, but agreed to keep working in his position until a new judge could be elected to take his place. And although the election will not take place until next month, we already know the winner: District Judge Lisa Payne Jones, who is the only candidate on the ballot.

Jones’s inevitable ascension to the Circuit Court leaves a hole on the District Court, and the process of filling that seat might take some time. So Judge Castlen, who previously served on the District Court, agreed to fill that seat again until a successor is found — meaning effectively that he will swap places with Judge Jones.

Good for Judge Castlen for agreeing to take on the new role so that the District Court can keep up with its docket. It’s an elegant, if temporary, solution to a curious staffing problem.

Polish government accedes to ECJ ruling on forced judicial retirement

It has been a while since we checked in on Poland’s judicial reforms, most of which have been openly hostile to the country’s judiciary. One of the latest reforms would lower the retirement age of judges from 70 to 65, effectively removing about two dozen experienced judges from the bench, and correspondingly allowing the government to appoint new judges in their place. It’s court packing without the packing.

The European Commission sued Poland over the legislation in the European Court of Justice (ECJ), on the grounds that it was part of a larger set of “systemic threats to the rule of law” which could trigger the loss of Poland’s voting rights in the European Union. In October, the ECJ suspended the legislation pending a permanent resolution. It upheld the interim injunction on Monday.

In response, Polish President Andrej Duda signed new legislation revoking the early retirement bill. Is this a sign that the Polish government is moderating its stance on judicial reform under EU pressure? Stay tuned.

West Virginia impeachment update

From the National Constitution Center, an update on events occurring over the last couple of weeks:

In the late-night hours of August 13, West Virginia’s Republican-controlled House of Delegates passed articles of impeachment against all four sitting Justices, accusing them of maladministration, corruption, incompetence, neglect of duty, and certain high crimes. (Justice Menis Ketchum had previously resigned after being charged with wire fraud for personal use of a state vehicle and fuel card. He recently pled guilty to those charges.)

On Saturday, August 25, Gov. Jim Justice named Republicans Tim Armstead and Rep. Evan Jenkins to fill the seats vacated by Justice Robin Davis and Ketchum, both elected as Democrats. Davis had retired after the impeachment charges were approved.

Impeachment trials are set to begin in the state senate on September 11. A two-thirds senate majority is needed to convict. If any justices are convicted, Gov. Justice will appoint replacements that will serve until 2020. Armstead and Jenkins will serve until November 2018, when they will have to run in a special election to attempt to keep their seats.

This is going to get very messy, very soon.

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”