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.
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.
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”
It has been widely reported that President Trump is filling federal judicial vacancies at a much faster pace than his predecessors. But the political impact of that pace is blunted by several factors, including the fact that most existing vacancies were created by the retirement of a previous Republican appointee, and the fact that many circuit courts continue to be dominated by Democratic appointees.
Russell Wheeler of the Brookings Institution provides an outstanding analysis of the impact of the President’s judicial appointments here. It is highly recommended reading, as is everything Russell writes on this and related issues.
Today, the West Virginia House of Delegates will begin considering articles of impeachment against 80% of its supreme court. Fourteen articles were brought against four justices last week, mostly related to overspending, fraud, and creating a culture of overspending and fraud.
The full articles of impeachment can be found here.
Meanwhile, Judge Paul Farrell was sworn in as a temporary supreme court justice on Friday, replacing Allen Loughry, who has been suspended. (Loughry continues to hold his title and is one of the four justices facing impeachment.) In a strange twist, Chief Justice Margaret Workman (who is also facing impeachment) issued an administrative order appointing Farrell as acting chief justice for impeachment proceedings. In other words, if the House votes to impeach all four justices, a brand new justice with a temporary appointment would be thrust into the unenviable position of presiding over the trial.
Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.
The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.
Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.
A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.
Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.
That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.
Continue reading “Florida’s fight over filling a judicial vacancy”