Tag: law and politics

Judges speak out about growing threats of violence. Should they be able to arm themselves more easily?

This week, members of the Idaho Supreme Court issued a statement claiming that they, their families, and their employees have been targeted with threats and harrassment: “when disagreement becomes personal, to the point of threats against personal safety and security … a line has been crossed.” Threats of violence are now commonplace for many state and federal judges. And all too frequently, real violence erupts with tragic consequences.

Congress passed legislation last year that would increase security for federal judges. And now a Republican legislator is proposing a bill that would make it easier for federal judges to arm themselves on their way in and out of the courthouse.

It’s a difficult policy question as to whether the security of judges and their families is enhanced by easing their own access to firearms. But plainly more needs to be done to build confidence that those in the judiciary are safe from threats of violence and harassment simply for doing their jobs.

South Carolina faces internal dissent over its judicial selection process

New York is not the only state suffering though high-profile dysfunction with its judicial selection process. This week, the South Carolina legislature postponed its scheduled judicial elections, and several legislators as well as the governor called for changes to the state’s selection process.

South Carolina is one of only two states that chooses its judges by legislative election. Proponents of this approach have argued that it keeps judges more closely aligned with the values and sensibilities of the people. Opponents argue that it politicizes judicial selection (in that judicial candidates must win over legislators in order to secure their votes) and makes the judiciary subservient to the legislature. Indeed, many states moved to direct judicial elections in the nineteenth century because of concerns about legislative interference with the judicial process. Continue reading “South Carolina faces internal dissent over its judicial selection process”

Progressives win the LaSalle battle, but at what cost?

Last week, the progressives in New York’s General Assembly effectively killed the nomination of Justice Hector LaSalle to be the Chief Justice of the New York Court of Appeals. As I have documented previously, the opposition had nothing to do with LaSalle’s qualifications or experience, but rather a ginned-up power play over Governor Kathy Hochul. In doing so, they prevented LaSalle from becoming the first Hispanic Chief Judge of the high court.

Identity sure seems to matter to progressives — until it doesn’t.

More broadly, Albany’s progressives are joyfully gutting a coequal branch of government in order to engage in an intramural fight with the governor. The Court of Appeals, in need of a Chief Justice for months, remains without an administrative leader. And the entire state court system has been deprived of leadership with respect to their everyday work.

All New Yorkers should be outraged on this assault on their judiciary. The consequences will become evident soon enough.

South Dakota mulls ending contested judicial elections

The legislative proposal is still in its early stages, and would need voter approval in 2024. It would end contested elections of judges and create a mechanism for formally allowing all judges to be appointed by the Governor. All judges would then face periodic retention elections, during which they would run unopposed and voters would choose to retain them for another term.

The proposal is far less radical as it seems. As this article points out, almost all state judges are already appointed to fill vacancies that occur between election cycles. Indeed, almost no judges actually ascend to the bench in the first instance from a direct election. Removing the requirement of contested elections is therefore as much a housekeeping measure as anything else.

It’s also an excellent idea. Contested judicial elections are in fact almost never contested, and when they are they are subject to deep politicization. Retention elections would continue to provide accountability to the voters, especially if it is paired with a robust judicial performance evaluation program.

Let’s see how this plays out. It is a hard thing for voters to give up their franchise, even in elections where there is rarely a decision to be made. But it is a development that bears watching.

New Jersey courts struggle with judicial vacancies

New Jersey’s court system currently has 65 judicial vacancies, leading one lawmaker to propose raising the state’s mandatory retirement age for judges in order keep exising jurists on the bench.

Like many states, New Jersey currently requires its judges to retire at age 70. But a mandatory retirement system presumes that the state will quickly fill judicial seats as they become vacant. In fact, both Governor Phil Murphy and the state legislature have been slow to act on existing vacancies, creating a crisis so significant that nearly eighty retired judges have been temporarily called back into service to help clear the caseload backlog.

State Senator Shirley Turner is proposing raising the mandatory judicial retirement age to 75. It is a stopgap measure, to be sure. The only way to solve the crisis is for the other branches of state government to take their nomination and confirmation responsibilities seriously.

The situation in New Jersey perfectly illustrates the resource challenges that court systems must navigate in the 2020s. The heightened politicization of every aspect of American life has led the executive and legislative branches to treat each judicial vacancy as an zero-sum partisan event. (See the current kerfuffle in New York.) Meanwhile the courts, unable to secure the human resources they need to address their dockets and unable to control the flow of cases into the system, have to resort to recalls and other strategies to keep up with their workload. No wonder public confidence in every branch of government is in decline.

Former judges, former governor, opposition party all call for Justice LaSalle to get a fair vote

Justice Hector LaSalle’s nomination for Chief Justice of the New York Court of Appeals has received additional support from a wide range of sources, including a dozen former judges, former Governor David Paterson, and some members of the Republican minority in the New York General Assembly. LaSalle’s nomination is currently being held up by partisans and progressive activists in Governor Kathy Hochul’s own party.

If Justice LaSalle is not the man for the job, by all means let that be reflected in debate and a final vote. But to try to sink that debate before it begins, especially when his nomination followed a well-structured and established process, is strong-arm politics at its most cynical.

Mexico elects new chief justice amid intrigue

The eleven justices of Mexico’s supreme court have elected Norma Lucia Piña as their new chief justice. Chief Justice Piña will be the first woman to lead the court in its history.

The 6-5 vote carried a fair bit of intrigue. Mexico’s President, Andrés Manuel López Obrador, had backed Justice Yasmín Esquivel for the position, and apparently had pressured the other judges to support her candidacy. But Justice Esquivel was also battling under allegations that she had plaigiarized her senior thesis while an undergraduate in the 1980s. Lopez Obrador subsequently demounced the result of the election, arguing that “the judicial branch has been kidnapped … has been eclipsed by money, by economic power.”

Piña stressed the importance of judicial independence in her first remarks as chief justice. It sounds like there will be some turbulent times ahead.

Illinois Supreme Court puts hold on cashless bail plan

The Illinois Supreme Court has stayed implementation of legislation that would eliminate cash bail in the state. The law known as ther Pretrial Fairness Act was set to go into effect on January 1. WTTW reports:

Roughly half of the state’s elected prosecutors had sued to stop the law from taking effect. On Wednesday, they won when Kankakee County Judge Thomas Cunnington issued an opinion that found the Pretrial Fairness Act unconstitutional. Cunnington said for the legislature to dictate pretrial detention procedures violated the separation of powers.

Cunnington’s opinion allowed the 65 counties that were party to the lawsuit to keep their current bail system in place.

But Illinois Attorney General Kwame Raoul said that Cunnington did not enter an injunction, so the 37 counties that were not part of the suit could move forward with cashless bail, and judges in all of Illinois’ 102 counties could choose to follow the Democrat-backed Pretrial Fairness Act if they so choose. That would have created a situation leading to a lopsided criminal justice system in which defendants would be treated with drastically different approaches where they were arrested.

In the short term, the state supreme court’s stay prevents inconsistent application of cash bail procedures across the state — a basic tenet of due process. The law’s long-term prognosis, however, is uncertain. Violent crime in Chicago is through the roof, and opponents argue that ending cash bail poses a clear risk to public safety.

Tunisian president clamps down on independent judiciary

This past weekend, Tunisian President Kais Saied issued a decree dissolving the country’s High Judicial Council and replacing it with a handpicked “Temporary Supreme Judicial Council.” The move gives Saied the power to remove any judge for “failing to do his professional duties” — i.e., any reason Saied comes up with — and further prohibits the judiciary from going on strike in protest of the changes.

Middle East Eye explains:

Saied’s relations with the judiciary have been on edge since he consolidated power last summer.

In July 2021, Saied, who won the presidential election in 2019 as an independent candidate, suspended parliament, dismissed the prime minister and assumed vast executive powers. He has been ruling the country by decree for months, bypassing the powers granted to him in the constitution. His power grab measures were labelled as a coup by critics and opposition groups, a charge that Saied rejects.  

The CSM – a body meant to remain free from political interference – was one of the last institutions in the country to remain outside his control. The council was established in 2016, after independent members were elected to it; their role is to oversee the appointment of judges, promotions, and disciplinary proceedings.

But over the past few months they have come under increasing scrutiny from the president. 

On multiple occasions, Saied has accused the council of failing to resolve high-profile cases, including the political assassination of left-wing leaders in 2013.

Saied accused the council of appeasing political forces within the country, namely Islamist-leaning factions like Ennahda, the biggest party in the suspended parliament.

In December, the Tunisian Association of Judges raised the alarm, saying the president’s ongoing campaign against the judiciary was turning the public against them. At the same time, cases accusing judges of wrongdoing started to emerge. At least a dozen judges were placed under house arrest as a result. 

Among them is Bechir Akremi, former general prosecutor of the Tunis Court of First Instance, who was placed under house arrest days after Saied announced his power grab in July. 

Akremi was accused of deliberately concealing important files regarding the 2013 assassinations of Tunisian leftist leaders Chokri Belaid and Mohamed Brahmi. He was also accused of being heavily influenced by the Ennahda party. In January, Akremi’s case was dropped on appeal, over technicalities, much to the displeasure of Saied.

“Unfortunately, some judges in the courts have manipulated this case,” Saied said last week. “This is not the first trial where they have tried to hide the truth for years.”

Judge Akremi’s case has become emblematic of the clash of power between Saied and the judiciary. Opposition groups warned Saied was trying to use the high-profile cases of political assassination as a guise to expand his powers and crush opponents. 

The move in Tunisia is reminiscent of the recent attacks on judicial independence by authoritarian regimes in Poland and Romania. And the moves are drawing thousands to protest in favor of judicial independence. Many fear the decree will open the door to sacking judges for purely political reasons.

This does not look good. It will be worth watching carefully.

When senior status becomes political

Josh Blackman has some interesting comments on two federal appellate judges — one a Reagan appointee, the other a Clinton appointee —  who  rescinded their decisions to take senior status after learning, to their dissatisfaction, the identity of the nominees who would replace them. (Note the excellent reporting by David Lat.)

There is something deeply unseemly about this. Two rescissions do not necessarily represent a trend, but as Professor Blackman points out, conditioning senior status on the appointment of a chosen successor would effectively give judges a veto power over presidential nominations. This poses obvious problems for both the general balance of power in the federal government and our Constitutional fabric. 

The question is what to do about it. I see nothing in the governing statute that expressly forbids this type of gamesmanship. But there are certainly some opportunities for soft power responses. For one thing, the President need not kowtow to a judge’s demand for a specific nominee; if President Biden and his successors simply refuse to allow sitting judges to influence the nomination process, the likelihood of particularized conditional declarations of senior status will probably just dry up. 

It’s also possible for powers within the federal court system to respond. Neither the Chief Justice nor the Judicial Conference has coercive power to prevent judges from declaring conditional senior status. But they do have other forms of influence. It is hard to believe that a call from the Chief Justice, or a sternly worded communique from one’s peers about preserving the legitimacy and apolitical culture of the judiciary, wouldn’t make a difference to many on the bench.

To be sure, the federal court system needs judges to take senior status periodically. It is an important means of bringing in new blood and coping with voluminous dockets (since senior judges do not count against each district and circuit’s statutory allocation of active judges). But the internal culture also has to be preserved, and slowing some judges from taking senior status in order to maintain legitimacy is surely the right call.