The new administration is borrowing from Trump’s playbook, not Obama’s.
Three weeks into the Biden administration, the new President’s approach to the judicial branch is coming into focus. It looks a lot like that of his immediate predecessor, with a heavy focus on appointing federal judges and advancing court-related policies that satisfy the ruling party’s ideological litmus test.
Biden entered the White House with only 46 vacancies on the federal bench, and several pending nominations remaining from Trump’s final weeks. But when the runoff elections in Georgia produced a 50-50 Senate and the ability of Vice President Harris to serve as a tiebreaker, the calculus on judicial appointments changed. The White House rescinded all of the pending Trump-era nominations and put out a call for its own nominees. More conspicuously, progressive activists and academics began urging older federal judges to take senior status, a designation which would keep them on the bench with a reduced caseload, but which (more importantly) would open additional vacancies at the district court and circuit court level.
Biden last week also rejected any formal role for the American Bar Association in pre-vetting federal judicial nominees, a stunning move for a Democratic President. The ABA’s process focuses on a nominee’s ideologically neutral qualifications, like experience and temperament. For generations, its ratings of nominees has served as an additional quality check — and since most nominees are deemed qualified or well-qualified, an additional stamp of approval that can help with Senate confirmation. When Donald Trump rejected the ABA’s vetting role in early 2017, I described the action as an “unforced error.” And indeed, it was — the ABA continued to vet the nominees even without the President’s blessing, and identified a handful of candidates who were plainly unqualified for the federal bench. Rejecting the ABA four years ago opened the door for criticism that Trump’s nominations were based more on ideology than skill and competence; rejecting it now will open the identical door for Biden. Continue reading “What should we expect of Biden when it comes to the judiciary?”
Columnist Ray Hill at The Knoxville Focus has been running an interesting multi-part series on the nomination of Judge John J. Parker to the Supreme Court in 1930. Judge Parker, who was serving on the Fourth Circuit Court of Appeals, would narrowly lose his confirmation vote due to the complex political alignments of the era. He would continue to serve on the Fourth Circuit until his death in 1958.
Parker has long been an interesting character from the perspective of federal court organization and administration. A politician before he began his judicial career, Parker was very closely tied to the leadership of the American Bar Association, and was one of the principal architects of the “Queen Mary Compromise” which created the modern Judicial Conference of the United States. (Interested readers can learn more here.)
Ray Hill’s pieces paint a vivid history of the Parker nomination, from the surprise opening on the Court occasioned by Justice Edward Sanford’s untimely death (after a routine dental appointment), to the rift within the Republican Party, to the shifting political demographics of the South. Although all four parts collectively feel repetitive at times, it’s a valuable overview of a fascinating moment in history.
The four parts of the series can be found here, here, here, and here.
Amy Coney Barrett is now the newest Justice of the United States Supreme Court. After a 52-48 vote Senate vote, she was sworn in last night by Justice Clarence Thomas.
Justice Barrett has demonstrated the intelligence, legal skill, care, and demeanor to be an influential member of the Court for decades to come. As importantly, the Court is back to full strength and in a better position to carry out its Constitutional duties efficiently and effectively.
Please tell me this is a joke:
Democrats on the Senate Judiciary Committee plan to boycott Thursday’s committee vote on Amy Coney Barrett’s Supreme Court nomination as a protest against Republican efforts to rush her through before the election.
The plan hasn’t been finalized yet, according to a Democratic aide, but Democrats are preparing to fill their empty seats with poster-sized photos of people who would be hurt by Barrett potentially casting a deciding vote against the Affordable Care Act. These would be the same pictures of people Democrats had on display during Barrett’s confirmation hearing last week.
Sadly, it appears to be real. Rather than upholding their Constitutional responsibility to vote a Supreme Court nominee, Senate Democrats are planning to replace themselves with cardboard cutouts for cheap political gain. In doing so, they will:
- Send the message to undecided voters, just days before a major election, that they are not serious about their fundamental responsibilities;
- Sow the ground for Republicans to pull a similar stunt (perhaps with cardboard cutouts of aborted fetuses) the next time the Democrats have a Senate majority and a Supreme Court nominee; and
- Provide some free advertising for South Park and Bud Light.
My goodness. What have we become?
Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg
In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.
But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.
I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.
Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”
The first of a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg
So here we are, not even five years removed from the embarrassing political melee that followed the death of Justice Antonin Scalia, and the same movie is playing out in even more absurd fashion.
Senator Mitch McConnell (R-KY) is working the Republican back benches to ensure a yes vote for the President’s Supreme Court nominee — never mind that there is, as of yet, no nominee to vote on. This is the same Senator McConnell who refused to even hold a hearing for then-nominee Merrick Garland in 2016 on the flimsy pretext that it was too late into a election year. To call McConnell’s reversal hypocritical is an insult to hypocrisy.
Remarkably, the Democrats have acquitted themselves even more poorly. After hectoring the American public in 2016 with the smug insistence that the Senate must vote on the Garland nomination (using the Twitter hashtag #DoYourJob), and after four years of accusing the Republicans of “stealing” the seat by not holding a hearing for Garland, the Democrats now declare —with no apparent sense of irony — that they will do everything possible to prevent a vote on the as-yet-unnamed nominee. The charge has been led, most distressingly, by the Democrats’ own Vice Presidential candidate Kamala Harris, who previously pledged to shirk her Senate duties by refusing in advance to vote for any Trump appellate court nominee, and who now promises an extended vacancy crisis in connection with her efforts to raise campaign funds.
How did we get here? Continue reading “The mortifying state of our Supreme Court confirmation politics”
Kansas’s senate has rejected Governor Laura Kelly’s nominee for an opening on the state court of appeals. Carl Folsom, a longtime public defender, experienced appellate advocate, and adjunct professor at the University of Kansas School of Law, was turned down on a close vote, on the grounds that he lacks civil litigation experience.
Give me a break. Folsom is well-respected and highly experienced in both the criminal and appellate arenas. He is familiar with the very court for which he was nominated, having argued many cases before that court over the years. His lack of direct civil experience is a non sequitur — he certainly appears capable of filling that knowledge gap. Unlike a trial court, where a judge must make snap decisions regarding procedure and evidence, and where prior experience is absolutely essential, an appellate judge has a bit more time to educate himself and ruminate on the issues.
This is plainly a political move, brought on by a conservative senate at war with a Democratic governor. GOP Senators were likely disturbed by the fact that Folsom had donated money to Kelly’s gubernatorial campaign, and had advocated for some traditionally liberal issues. But so what? Folsom is a private citizen and is entitled to support his favored candidates and causes. There is nothing I have seen to suggest that he would not perform his judicial duties fairly and honorably.
Courts suffer when the other branches of the government play politics with judicial nominations. The people of Kansas deserve better than this transparently political ploy.
Tennessee uses a version of the Missouri Plan to select its state appellate judges. Known (unsurprisingly) as the Tennessee Plan, it calls for an independent nominating commission to present a slate of qualified candidates to the governor, who must appoint a judge from that slate. (This is akin to most merit selection plans around the country.) The judges then stand for retention elections.
Trial court vacancies are filled using a similar process. A nominating commission (whose members are appointed by the legislature) presents a slate of names to the governor within 60 days of a judicial vacancy, and the governor must choose a new judge from that slate.
Under the current system, legislators no direct role in filling judicial vacancies, but a bill working its way through the state legislature is aiming to change that. For new trial judges, House Bill 1257 would require the governor to provide a written notice of appointment to the clerk of each legislative chamber, which would trigger a 60-day period for each chamber to confirm the nominee. If both the Senate and House reject the nominee, or if even one chamber rejects the nominee by a two-thirds majority, the appointment would fail. If neither of these things happens within 60 days, however, the appointment would be deemed valid.
There is nothing inherently wrong with the legislature wanting to have a say in judicial appointments, but in the absence of a pressing concern about the current process, it’s hard to see why this is a good idea. The use of an independent commission is already designed to cut down the risks of partisanship or patronage, and to ensure qualified candidates. And because a nominee may not take the bench under this bill until legislative confirmation or the passage of sixty days after nomination, the judiciary would be left with longer periods of unfilled vacancies.
The bill has only worked its way through the House Judiciary Subcommittee, and has a long road to travel before becoming law. But it’s hard to see why this idea is particularly wise, necessary, or beneficial to those who rely on Tennessee courts to be efficient and effective.
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!
The Hill reports: Feeling heat from the left, Dems reject judges deal.
A Senate Democratic aide said Wednesday that [Chuck] Schumer would not agree to approve the final slate of judicial nominees as the Senate prepares to wrap up its work for the year.
Progressives skewered Schumer for agreeing to two previous deals this year, one in August and the other in October, when he signed off on a group of court picks in exchange for letting vulnerable incumbents head back to their home states to campaign before the November midterm election.
Current number of vacancies in the federal courts: 143.