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.
Senate Judiciary Committee Chairman Chuck Grassley indicated today his party’s desire to confirm 41 additional nominees to the federal bench by the end of the year. That number would include a replacement for Judge Brett Kavanaugh on the D.C. Circuit.
The bad blood between the Democrats and Republicans on the Judiciary Committee, and more generally in the Senate, will make this a more difficult project. I can only hope that the Senators look beyond their partisan political aims and recognize the importance to the public of having a fully staffed judiciary. This is especially true for the 39 district court nominees, many of whom have been nominated to fill long-vacant seats on the bench.
I won’t rehash the latest eleventh-hour allegations against Judge Brett Kavanaugh. I’ll just note as a placeholder that the Senate Judiciary Committee will try (again!) to hold a confirmation vote this coming Thursday, September 20.
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…
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”
The confirmation hearings for Supreme Court nominee Brett Kavanaugh commenced this morning in Washington, DC. The hearings began with a series of objections by Democratic members of the committee to tens of thousands of pages of documents that have been withheld by the White House.
The livestream of the hearings (from CSPAN) can be found here.
Reaction from Senate Republicans on Senator Jeff Flake’s plan to hold up judicial nominations until Congress acts on tariff and trade issues has been respectful but wary, according to this piece in The Weekly Standard:
Although some of Flake’s colleagues have similar convictions concerning Trump’s use of tariffs, they say they won’t go so far as to block Trump’s appointees.
“I am not holding up judicial nominees for that purpose,” Pennsylvania Republican Pat Toomey told reporters on Monday night.
Toomey is a co-sponsor of a measure originally introduced by Bob Corker that would subject tariffs imposed under national security claims through Section 232 of the Trade Expansion Act to congressional approval. Trump has angered close trading partners (and Republicans on Capitol Hill, for that matter) by using that authority to impose tariffs of 25 percent and 10 percent on foreign steel and aluminum. The White House intends to use it again to impose tariffs of 25 percent on imported automobiles.
Toomey and Flake agree that Trump’s license to implement such duties without congressional approval should be revoked. And Toomey said on Monday night that getting a vote on the trade bill is “very important to me” — but so is confirming Trump’s judicial nominees. And Wisconsin Republican Ron Johnson, another co-sponsor of the Corker bill, said that he would love to see Congress reclaim its Article I constitutional authority over tariffs, but that he wasn’t insisting it happen “at exactly this moment in time.”
“I’d prefer he not do it,” Johnson said of Flake’s strategy of targeting Trump’s judicial nominees. “We need to confirm judges.”
Corker himself appeared wary of the notion. “We’re trying to pass the amendment in a normal way,” Corker shouted through the glass of a Senate subway car as the train propelled him away from a gaggle of reporters on Monday night.
Judiciary Chairman Chuck Grassley said on Monday night that he hadn’t spoken to Flake about the issue. “I’m interested in moving these judges, but I also have respect for what [Flake] wants to do,” Grassley told reporters. Senate Majority Whip John Cornyn said he would prefer to advance trade legislation through the Finance Committee, which has primary jurisdiction over the issue. Still, Cornyn didn’t appear completely opposed to the concept of curtailing Trump’s ability to unilaterally impose the Section 232 tariffs.