Iowa legislature to consider radical changes to judicial nominating commission

Iowa has used a nominating commission to select its judges for more than half a century. As currently comprised, the commission includes a chair (the most senior justice of the state supreme court other than then chief justice) and sixteen members, half of whom are chosen by the governor and the other half of whom are chosen by the state bar association.

But new legislation, introduced by state senator Julian Garrett, would radically revise the composition of the commission, by stripping the state bar of all but one representative, and leaving the remaining members to be appointed solely by the governor. Garrett has called the existing system “unfair” and “undemocratic,” because the bar association appointees are not directly accountable to the electorate.

It’s worth emphasizing that the bill has only been introduced, and may never see passage. But it’s indicative, at least to me, of a growing skepticism of bar associations and the legal profession generally. This is likely connected to the overall skepticism of professional expertise that is on the rise on American culture. And it means that lawyers and judges will have to work harder, and in different ways, to convince legislators and citizens that their professional knowledge is used for the public good.

No more federal judicial confirmations this year

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.

 

Federal magistrate judges on the move

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…

Kavanaugh hearings livestream

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.

 

Examining the impact of President Trump’s judicial appointments

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.

Some quick thoughts on the Kavanaugh nomination

A few quick hits on President Trump’s nomination of Brett Kavanaugh to the Supreme Court:

  1. Predictions are easy to make, and hard to make correctly. If I were better at this, I would have moved to Vegas already.
  2. Judge Kavanaugh will be subject to the same partisan rancor that has infected our federal judicial nomination process for nearly two decades. But he is surely qualified for the Supreme Court. His dozen years on the D.C. Circuit, as well as his educational and professional background, more than qualify him.
  3. That said, I firmly believe that the President would have been more politically expedient for the President to nominate Joan Larsen (or one of several other former state supreme court justices) for the seat. Judge Kavanaugh is a “safe” pick in part because he has the profile of a consummate Washington insider. Born and raised in Bethesda, his professional career has primarily been spent within the federal government, and he doesn’t appear to have spent much time at all outside the Beltway. (Yale and two clerkships seem to be the bulk of his non-D.C. experience). President Trump had a real opportunity to woo voters in Middle America with a non-East Coast pick, and there were several highly qualified nominees of that sort on his 25-person short list. It is disappointing that someone with greater familiarity with America beyond the Beltway wasn’t picked.
  4. In the same vein, and despite Judge Kavanaugh’s credentials, I am also disappointed that another D.C. Circuit judge will populate the Supreme Court. The Court already has three D.C. Circuit alums (Roberts, Thomas, and Ginsburg). The D.C. Circuit is an important court, to be sure, but it hardly needs four justices out of nine with that limited perspective.
  5. I thought Trump would nominate a woman, if only to create a political advantage over the identity politics-obsessed Democrats in the Senate. The Kavanaugh nomination indicates that Trump was not interested in engaging that dynamic this time around. But it’s hard to believe that he wouldn’t revisit it soon. Perhaps he is counting on another vacancy opening in the next two years; if Justice Ginsburg retires, he could nominate a woman (perhaps an even more seasoned Joan Larsen) and really watch the fur fly.
  6. From the perspective of the courts themselves (and, after all, that’s what this blog is about), the Kavanaugh nomination means more judicial cascades to come. Assuming the nomination is successful, Trump will now have the opportunity to fill Judge Kavanaugh’s D.C. Circuit seat with a (presumably) younger judge of the same qualifications and ideological bent. If he pulls such a judge from the district court ranks, he will have another vacancy for the trial courts as well. Given the record pace with which he is nominating (and the Senate is confirming) federal judges, the courts will have a continued infusion of relatively young (Gen X) judges at all levels.