A renewed effort to create regional judicial elections in Pennsylvania

Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:

Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.

He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.

I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”

Making sense of the recent Congressional testimony on courts and technology

On June 25, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing entitled Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and Lessons for the Future. The hearings featured testimony (via Zoom, of course) from federal district judge David Campbell, Michigan Chief Justice Bridget Mary McCormack, former federal district judge (and current Executive Director of the Berkeley Judicial Institute), and Melissa Wasser of the Reporters Committee for Freedom of the Press.

The testimony was interesting, as was the choice of witnesses. The entire hearing (all 102 minutes of it) can be found directly below, with some thoughts on what transpired to follow.

Continue reading “Making sense of the recent Congressional testimony on courts and technology”

An interesting overview of the Japanese judiciary

I am no expert in the Japanese legal system, but I was intrigued by this article (in translation, from Nippon.com) which sets out some of the history and mechanics of the country’s judicial system. In particular, I was struck by how strongly the modern judiciary has been influenced by American occupation after World War II, both positively (adoption of the political question doctrine, overt commitment to judicial independence) and less positively (e.g., direct American interference in high profile cases in the immediate postwar years). I was similarly struck by the Japan’s embrace of bureaucratic approach to judging that is common in civil law systems across Europe and Latin America.

A good, relatively short read.

 

Israeli Supreme Court Justice receives death threat

Israeli Supreme Court Justice Anat Baron has been assigned additional security detail after receiving a death threat in the mail over the weekend. The letter apparently made veiled reference to Justice Baron’s son, who was killed by a suicide bomber in 2003.

This is grotesque and illegal behavior, and was immediately condemned by Israeli leaders including Prime Minister Binyamin Netanyahu. But Netanyahu himself has been accused of inciting this type of behavior, given his ongoing verbal attacks on the judiciary as he fights for his political life. The parallels to President Trump’s assaults on American judges are hard to ignore.

To be clear, neither Netanyahu nor Trump can possibly be said to wish physical harm to judges with whom they disagree. But rhetoric matters, and when politicians of any stripe wage war on the judiciary as part of their partisan battle plan, they do bear some responsibility for the collateral damage, both to judges’ reputations or (worse) to their physical well-being.

A brief history of New Jersey Supreme Court appointments

The New Jersey Globe has put together a useful series of articles on gubernatorial appointments to the state supreme court since 1947. Garden Staters and those interested in the court’s history (and its political dimensions) should take notice.

Alfred Driscoll’s First Seven Picks

The Meyner Court

The Cahill Court

The Byrne Court

The Kean Court

The Whitman Court

The McGreevy and Corzine Courts

The Christie Court

 

Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases

A guest post by Lawrence Friedman

In Republican National Committee v. Democratic National Committee, the U.S. Supreme Court ruled that absentee ballots in Wisconsin had to be postmarked by election day or earlier, which meant that many citizens would have to brave the polls and risk exposure to the novel coronavirus in order to vote. A New York Times story subsequently observed that the per curiam decision “was in keeping with a broader Republican approach that puts more weight on protecting against potential fraud — vanishingly rare in American elections — than the right to vote, with limited regard for the added burdens of the pandemic.”

This view aligns with that of the critics who note that the results in many of the Court’s recent voting rights decisions tend as a practical matter to inure to the benefit of the Republican Party. Indeed, a central question raised by the Court’s rulings in this area is whether the prevailing majority in these cases – Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – is motivated solely by partisanship. Writing in The Atlantic about the decision in the Wisconsin case, for example, Garret Epps asked whether the majority was “guided by principle or by simple allegiance to the party that has gone to such lengths to seize control of the Court.”

There is an argument to be made that there is a principle at work in election cases—that the Court’s rulings reflect neither the majority’s embrace of dubious theories about voter fraud nor a bare desire to harm Democrats but, rather, a commitment to resolving disputes about who gets to vote on neutral grounds. Indeed, the Roberts court’s voting rights decisions can be seen as expressions of the majority’s abiding interest in avoiding – seemingly at all costs – any judicial involvement in the way state governments run elections. This interest follows from the premise that, as the majority reads it, the constitution is pre-political: there are no Republicans and Democrats, only candidates; and the rules under which elections are run are, other than when they are expressly discriminatory on the basis of race, the purview of legislators. Continue reading “The Supreme Court’s Sometimes Questionable Adherence to Principle in Voting Rights Cases”

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”

In LA, changing your name to “Judge Mike” won’t get you elected to the bench

Los Angeles County held its judicial primaries on March 3, and one candidate took an unusual approach to attracting voters.

Candidates must list their current (or most recent) occupation in the ballot. Mike Cummins, a retired attorney, had briefly served as a judge in a smaller county in the early 2000s, but was no longer eligible to list his occupation as a judge. So he legally changed his name to Judge Mike Cummins.

The voters were not fooled. Cummins lost overwhelmingly to his opponent, Deputy DA Emily Cole.

And for those who were following the judicial hopes of former child actor Troy Slaten, alas, he too lost handily in his LA County primary this week.