Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.

Montana Republicans increase political pressure on state supreme court

Republican officials in Montana, who declared open season on their own judicial system earlier this year, fired a new salvo at the courts late last week. State Attorney General Austin Knudsen requested that the entire state supreme court recuse itself in a case involving a legislative subpoena of internal court documents.

In March, Governor Greg Gianforte signed into law a bill that would eliminate the state’s Judicial Nomination Commission, and allow the governor to fill judicial vacancies directly. Several weeks ago, the Republican legislature issued a subpoena to the state court administrator, seeking internal emails and other court documents (Including an internal poll) in which state trial judges allegedly expressed opinions on the constitutionality of that legislation. The court administrator asked the state supreme court to quash the subpoena, and Chief Justice Mike McGrath recused himself from that determination because he had lobbied the governor not to sign the bill. The remaining six members of the state supreme court quashed those subpoena in mid-April, pending a further hearing.

The AG now asserts that all members of the supreme court are directly conflicted from participating in any future hearing on the issue, because they would be ruling on access to their own internal documents. The justices’ continued participation in the case constitutes, in the AG’s words, “not merely the appearance of impropriety. This is actual impropriety.”

At first glance, state Republicans have laid a trap for the judiciary worthy of a cartoon villain. If the remaining justices recuse in order to avoid the appearance of impropriety, the Republicans will challenge any replacement judges on same grounds until they find judges that they feel will rule in their favor. On the other hand, if the justices decline to recuse themselves, they will face continued allegations of bias and impropriety, and will come under heavy political pressure to allow the subpoena to go forward.

Never mind that the allegations of impropriety appear to have absolutely no merit. None of the six justices on the court have spoken in any official public capacity about the subpoenas or the pending legislation. But that is beside the point: the real purpose of the recusal motion is to turn public opinion against the courts by painting the judiciary as hopelessly biased.

There is a way out of this trap, but it will require several careful steps.

Continue reading “Montana Republicans increase political pressure on state supreme court”

El Salvador’s authoritarian regime ousts country’s top judges

Disturbing news over the weekend from El Salvador, where authoritarian president Nayib Bukele and the ruling Nuevas Ideas party removed five judges from the country’s supreme court. The judges were immediately replaced with new judges loyal to the regime.

The move drew significant international criticism, including a warning from U.S. Secretary of State Antony Blinken about the necessity of an independent judiciary in a democracy. On Twitter, Bukule responded, “We are cleaning house … and this doesn’t concern you.”

When autocrats seek to consolidate their power, their first move is often to undermine or replace the judiciary. Just as the citizens of Venezuela or Poland.

EU sues Poland over 2019 judicial law

Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.

Deutsche Welle explains:

At issue is the Polish law affecting the judiciary that came into force in February last year.

It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.

The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.

One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.

The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”

Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.

Another chapter in a distressing saga.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

State courts come under legislative assault

State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.

The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:

In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.

In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”

Are Supreme Court amicus briefs posing a transparency problem?

That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.

Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.

Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.

Nevada Supreme Court seeks substantial pay hikes for state judges

The proposed legislation would increase all judicial salaries by $30,000/year, with additional automatic increases beginning in 2027. Interestingly, the bill came from the supreme court itself, as Nevada permits government entities other than the legislature to propose legislation.

West Virginia will again consider adding an intermediate court of appeals

West Virginia is one of the few states that has no intermediate appellate court, meaning that its state supreme court faces a more congested, mandatory docket. Lawmakers have periodically proposed adding a new court, but without success.

The effort has begun again: the West Virginia Appellate Reorganization Act was introduced in the state’s senate judiciary committee this week.

Intermediate appellate courts cost money and demand infrastructure, but they also make a lot of sense from the standpoint of the administration of justice. Some lawmakers are optimistic that this will be the year.

More fallout from the Solar Winds hack

After last month’s revelation that the federal court system was among the victims of the Solar Winds cyberhack, leaving thousands of sensitive documents in the hands of Russian hackers, members of Congress are now demanding answers about the extent of the fallout. As one story notes:

Senators Richard Blumenthal, Dianne Feinstein, Patrick Leahy, Dick Durbin, Sheldon Whitehouse, Amy Klobuchar, Chris Coons, Mazie Hirono, and Cory Booker all signed on to a letter to the chief information officer at the Department of Justice and associate director of the administrative office of the U.S. Courts on Jan. 20 demanding a hearing on the changes and the potential access of court documents by the hackers.

“We are alarmed at the potential large-scale breach of sensitive and confident records and communications held by the DOJ and AO, and write to urgently request information about the impact and the steps being taken to mitigate the threat of this intrusion,” the senators wrote.

It’s not immediately clear to me why all of the signatories are Democratic senators. Perhaps it’s more pointless partisanship from a deeply dysfunctional Senate Judiciary Committee. But cybersecurity for the courts should be a bipartisan concern, and one can only hope that it will be treated as such.

The Administrative Office of the U.S. Courts has alraedy announced a plan to maintain sensitive filings on paper for the foreseeable future. We’ll see what develops in the coming weeks.