The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.
Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.
The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.
Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.
The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?
It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.
The UK judiciary will receive a 2% across-the-board salary hike, the highest raise for the judges in a decade, according to the Daily Mail. Judges in certain courts may receive a larger raise if the Ministry of Justice follows the latest recommendations of the Senior Salaries Review Body (SSRB).
The SSRB says recruitment problems were principally occuring because conditions of service for a judge had become ‘much less attractive’ to potential applicants. Changes to tax and pensions meant the total net remuneration for a new High Court judge is worth £80,000 less than it was 10 years ago, £49,000 less for a circuit judge, and £29,000 less for a district judge.
The report states that those who join the judiciary are motivated by a challenging job and providing a valuable public service: ‘The problem is that potential judges from the senior ranks of the legal profession are not applying in sufficient numbers. This situation requires urgent and effective intervention. It is generally accepted that the public sector cannot match the rewards for a top QC or solicitor. However, the judicial role needs to be made more attractive in order to recruit high quality legal professionals as judges.’
The SSRB recommends that High Court judges should be paid £240,000 (a 32% increase), £165,000 for circuit judges (a 22% increase) and £117,000 for district judges (an 8% increase).
Gauke said the government will ‘carefully consider’ the SSRB’s recommendations ‘and respond in due course’. Until then, the recruitment and retention allowance for High Court judges will remain.
Last June, former New Hampshire Superior Court judge Patricia Coffey sued the state, seeking an annual pension of nearly $90,000 and pension back pay of nearly $400,000, in addition to ongoing health insurance. Coffey resigned her position in 2008 after she was suspended for helping her husband create a false trust to hide assets. She was also found to have violated the state’s canons of judicial ethics by receiving a salary from a private company while on the state judicial payroll.
Coffey moved to California, but continued to make payments into the state pension system, and demanded full benefits once she was age-eligible in 2015. The state pension board denied her application.
Coffey is seeking a jury trial, but last week the state moved to dismiss the case altogether. That motion is pending before the federal court.
I always find it interesting to follow cases in which a judge (or a group of judges) is a party, especially if the litigation involves some aspect of the judge’s professional role. Two such cases popped up this week, in very different contexts.
In New York, the state Court of Appeals heard a challenge to legislatively imposed limits on judicial health benefits, in an action brought by a number of active and retired lower court judges. The Court essentially was asked to rule whether the reduction in state contributions to judicial health insurance violated the compensation clause of the state constitution. Interestingly, many of the judges were skeptical of the claim, and the decision has yet to be rendered. But it was an excellent illustration of what I have called “judging when the stakes are personal” — conditions under which the judge cannot issue an entirely impartial decision, because he or she will necessarily be affected by the decision one way or another.
In a separate action with a very different flavor, state judges in New Orleans are defending a civil rights suit in federal court, accused of running a “debtor’s prison” by jailing poor criminal defendants who cannot pay court costs. The plaintiffs allege that the practice is unconstitutional. (The judges have moved to dismiss the action.) This is a different kind of judicial interaction — a federal judge being asked to assess the constitutionality of a state judicial practice — but it still raises interesting issues about how the federal judge views the work and professional role of her state colleagues.
We will follow both cases, especially the way in which each court the issues surrounding its fellow judges.
The deadline for reaching an accord with the government is August 23. More information here.