Kimberly Budd tapped as new Chief Justice of Massachusetts Supreme Judicial Court

Massachusetts Governor Charlie Baker has nominated Kimberly Budd to serve as the next Chief Justice of the state’s Supreme Judicial Court. Budd is currently as Associate Justice of the Court. She would fill the opening created by the untimely death of Chief Justice Ralph Gants last month.

Justice Budd is an outstanding choice. She is incredibly accomplished, well-respected, and has an excellent judicial demeanor. She will serve the Court, and the people of Massachusetts, well in her new position.

Senate Democrats to boycott Barrett confirmation vote, replacing themselves with cardboard cutouts

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?

On Biden, the Court, and what voters “deserve to know”

Joe Biden’s refusal last week to state whether he supports the Court-packing scheme advanced by several prominent members of his own party, and his insistence that voters “don’t deserve” to know where he stands on the issue, has drawn understandable scrutiny. Several commentators have attempted to dissect both the political cynicism behind the proposal and Biden’s strategy for declining to comment on it. (In particular, I recommend the first dozen minutes of this Commentary podcast as well as this op-ed by Gerard Baker in the Wall Street Journal).

I want to focus here on what the kerfuffle means for Biden post-election, since it seems very likely that he will win the Presidency next month. As Baker points out (behind a paywall, unfortunately), “even Mr. Biden—something of a procedural conservative—must be aware how grotesque the idea [of court packing] is. The prospect of a high court turned into an adjunct of the executive and legislative branches, staffed by black-gowned, forelock-tugging accessories to untrammeled political excess, must surely give him pause.”

Baker is right. Biden is too steeped in the Washington politics of the last fifty years to not be a traditionalist on this issue. Indeed, he has had three decades to reveal himself as a disruptor of court structure, both as a high-ranking member of the Senate Judiciary Committee, and as Vice-President. To be sure, he has spearheaded legislation that has changed court operations, and he bears heavy responsibility for setting the tone of current Supreme Court confirmations with his behavior during the confirmation hearings of Robert Bork and Clarence Thomas. But he has nevertheless conducted himself according to the standards of twentieth-century American politics: play hard, and don’t kick the game board over just because you think you’re losing.

The extremists in his party disagree, and are embracing the vision of converting the Court into an arm of the progressive movement by brute political force. This  development should concern all who believe in preserving the delicate balance between court independence and interdependence, and indeed the proposal is playing very poorly with most voters. (Perhaps in a nod to this reality, Biden himself finally stated that he was “not a fan” of court packing in a radio interview on Monday.)

Progressive extremists will certainly put pressure on a Biden Administration to force the court-packing policy into existence, especially if Democrats win the Senate in November.  And of course Biden, like any President, would feel some compulsion to support the legislative agenda from a same-party Congress. But some of the more senior legislative members of his own party recognize the inherent dangers (political and structural) of court-packing, and would likely try to to slow down any movement, especially in the Senate. Moreover, there is no significant reason to believe that his White House would simply be a vessel for extreme progressives. Biden is a wily veteran in Washington. No matter how he may project on the camoaign trail, he surely knows how to wield the levers of power behind closed doors.

Bottom line: A Biden Administration will not support court packing and will try to deemphasize it. Look for Biden to lean on Nancy Pelosi, and others who have been burned by aligning themselves with their intraparty radicals, for assistance in tamping down the extremism. Biden’s position may prove to be a last stand, depending on the growth of the radical progressive wing of the Democratic Party, and court-packing may remain as an issue in 2024. But a lot will happen between now and then, and the short-term likelihood of this terrible policy proposal coming to fruition is probably slimmer than it appears.

The political calculus: Who WILL be the Supreme Court nominee?

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 political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

Another Senator joins the federal judicial nomination Hall of Shame

Senator Josh Hawley (R-MO) said in an interview that week that “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” He added, “By explicitly acknowledged, I mean on the record and before they were nominated.” Hawley championed his position as a way of correcting “an unbridled act of judicial imperialism,” the point “at which the modern Supreme Court felt it no longer had to follow the Constitution.”

Hawley is of course entitled to his views on the abortion debate, but his explicit refusal to vote for anyone who does not pass his narrow litmus test represents a direct assault on the Third Branch of government. The percentage of the Supreme Court’s cases concerning abortion are miniscule compared to the wide range of other matters it hears — matters that evidently are of no moment to Senator Hawley. Whether he is fully sincere in his pledge, or just making a political play, his ex ante refusal to even consider qualified nominees for the Court is a wholesale deriliction of his duty as a United States Senator.

Sadly, Hawley is not alone. This blog has taken to task Senator Kamala Harris (D-CA) for her equally repugnant vow not to vote for any of the President’s nominees, and Senator Mazie Hirono (D-HI) for her inappropriate questioning of judicial nominees.

Harris in particular has ambitions for a national political role. But such open hostility to the judiciary, and the readiness to treat a co-equal branch of government as a political plaything, should disqualify Hawley, Harris, and Hirono from any further national office.

A reverse judicial cascade!

I have written before about judicial nomination cascades: situations in which a sitting judge is appointed to another court, leaving another vacancy on the judge’s original court. Usually, cascades move in a single direction: trial judges are appointed to appellate courts, or intermediate appellate judges to courts of last resort.

But this week, Massachusetts initiated a rare reverse judicial cascade when Justice Edward McDonough, Jr., who is currently on the Massachusetts Appeals Court, was nominated for a seat on the Massachusetts Superior Court, which is the state’s general jurisdiction trial court. Judge McDonough previously served on the Superior Court from 2013 to 2017.

Judge McDonough’s long career as a trial lawyer suggests a high level of comfort with the trial bench, and it is inspiring to see judges who prefer the hurly-burly of the trial courts over the more sanitized settings of the appeals court. Assuming the appointment is successful, it will be interesting to see who Governor Charlie Baker nominates for the vacancy created on the Appeals Court.

 

Kansas senate rejects state appellate nominee on flimsy grounds

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.

Judicial qualifications and the modern political calculus

As Jordy Singer points out in Experiential diversity on the Supreme Court is a pipe dream — at least for now, his response to my recent post, “[i]n states in with nominating commissions, conscientious governors, and reasonable judicial turnover,” the kind of careful judicial selection practiced in Massachusetts and Colorado “is possible. But it doesn’t work that way in most states, and certainly not at the federal level.”

I don’t disagree with this assessment. One difference, though, is that, while it doesn’t work in most states as it does in Massachusetts or Colorado due to the state’s constitutional or statutory design, the process of judicial selection at the federal level—at least, at the level of the Supreme Court—is almost purely a matter of choice. Indeed, it is most often a matter of political choice. And while, realistically, the qualifications of potential Supreme Court justices may not be changing any time soon, we should not give up on the normative arguments for such change. This is not to suggest that the politics will eventually become less important in the selection of Supreme Court justices, but that, within the realm of political choice, Presidents and Senate majorities might one day think beyond the limited qualifications that today’s nominees uniformly possess—qualifications essentially defined by pedigree.

Singer notes the incentives for the President “to nominate a sitting judge with sterling credentials,” which deters the opposition from “play[ing] games with the confirmation of such a highly qualified candidate.” His cites as an example Harriet Miers, President George W. Bush’s original choice to replace retiring associate justice Sandra Day O’Connor in 2005. Miers was White House Counsel; her prior experience included many years as a corporate lawyer in a large firm, and she served as the head of both the Dallas Bar Association and the State Bar of Texas, as well as chair of the Texas Lottery Commission and as an elected member of the Dallas City Council—a record of accomplishment and service of which any lawyer would rightly be proud, and a record of experience that might reasonably be thought to inform many issues that might come before the U.S. Supreme Court in areas such as municipal law, the practice of law, civil procedure, and the regulation of lawyers.

On the other hand, Miers never served as a judge in any state or federal court, or taught as a law school professor, or litigated constitutional cases before any court, much less the U.S. Supreme Court. Oh, and she earned her law degree at Southern Methodist University. But the absence of typically elite credentials did not fuel Democratic opposition to her nomination; rather, that opposition came from within, as pressure from Republicans within and without the Senate ultimately resulted in the withdrawal of her candidacy. At least one conservative commentator put a fine point on her nomination: “The Supreme Court is an elite institution,” Charles Krauthammer wrote. “It is not one of the ‘popular’ branches of government.”

Interestingly, what was known at the time of Miers’s views on many of the issues of most concern to a Republican President suggests she would have consistently voted with majorities to curtail the right to choose, embrace the right to bear arms, and respect state sovereignty. Indeed, it is far from clear how many cases would have turned out very differently had she, and not O’Connor’s eventual successor, Samuel Alito, made it to the Court.

The elitism that contributed to the downfall of the Miers nomination was not the result of any constitutional or statutory rule. It simply reflected a modern political calculation, one that has hardened into an expectation. Any President—or Senate Judiciary Committee—could insist that it be changed. And change may come, should political majorities coalesce around the belief that the lives and experiences of Supreme Court justices should not be so distant from those of most American lawyers—or, indeed, most Americans—as to cast a shadow on the legitimacy of judicial decision-making that affects every one of us.

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”