California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

Ugly campaign tactics in upstate New York judicial race

Law.com reports on a campaign mailer sent to residents of Sullivan County, New York, which accuses a Democratic judicial candidate of being a socialist and favoring the legalization of drugs. Her Republican opponent has taken full credit for the mailer, which was designed to look like a local newspaper. The accused candidate has denied the allegations of socialism and drug legalization, and has filed a complaint with the state broad of elections.

Judicial candidates acting injudiciously.

 

Party politics and judicial nominations in Michigan

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.

New bill would increase disclosures regarding federal judicial travel

Senator Sheldon Whitehouse (D-RI) has introduced a new bill in the Senate, dubbed the Judicial Travel Accountability Act. (It has not yet received a number.) The bill would increase the financial disclosures put on federal judges regarding their travel. Bloomberg Law reports:

The Ethics in Government Act requires that judges’ disclosures include only the identity of the source and a brief description of reimbursements over $390. But judges don’t have to identify the dollar value of the reimbursement, and are exempted entirely from reporting any gifts in the form of “food, lodging, or entertainment received as personal hospitality,” Whitehouse said in a news release.

The Judicial Travel Accountability Act would require “judicial officers’” financial disclosure statements to include the dollar amount of transportation, lodging, and meal expense reimbursements and gifts, as well as a detailed description of any meetings and events attended.

The bill calls for disclosures to be filed within 15 days of a trip and to be made available on a public website. The Supreme Court doesn’t post its financial disclosures online and they are made available only once a year

In an ordinary political cycle, it would be easier to see this is as a truly bipartisan effort to promote public confidence in the judiciary, akin perhaps to the regularly introduced “Sunshine in the Courtroom” Acts that seek to bring cameras and other transparency mechanisms into the courthouse. But this is not an ordinary political cycle, and it is hard to see this bill as anything other than a political ploy. Start with Senator Whitehouse, whose public treatment of the Supreme Court has become increasingly unhinged as of late, and who chose to begin his remarks with a focus on the Supreme Court even though its Justices represent less than one-tenth of one percent of the entire federal judiciary. Then there is the list of co-sponsors: 12 Democrats (including two current presidential hopefuls) and only one Republican. It’s not difficult to see this bill as primarily an effort to turn the courts into a political football once again.

It is a dangerous thing when politicians drag the court system into their partisan squabbles, and it is in my view a significant reason why the public increasingly sees the courts as political. But while the federal courts cannot stop Congress from introducing pointed legislation, it can render such legislative chicanery moot by adopting its own reporting practices. Put differently, if the court system itself required judges to report more fully their travel junkets, rather than waiting for Congress to mandate it, courts would reap the benefits of increased public confidence and would not find themselves dragged into the political muck. More on this point in a future post.

Supreme Court declines to hear West Virginia judicial impeachment case

Last year’s drama surrounding the impeachment of West Virginia’s Supreme Court seems to have come to its final chapter. The United States Supreme Court announced that it will not hear a challenge to the decision that halted the impeachment proceedings on separation-of-powers grounds.

Background on the impeachment of the West Virginia justices here, here, here, here, here, here, here, here, here, and here.

Thai judge shoots himself in open court in defense of judicial independence

The global media is starting to report on a horrific incident that took place in a Thai courtroom at the beginning of October. Judge Khanakorn Pianchana had just announced the acquittal of five criminal defendants accused of murder when he grabbed a handgun and shot himself in the chest. In a 25-page document explaining his actions, Judge Khanakorn claimed that he had been under political pressure from the ruling authorities to convict the defendants of murder, even though the evidence against the defendants was insufficient and obtained primarily through improper interrogation and detention measures.

Judge Khanakorn survived the shooting and is now recuperating from his injuries. But the incident has shaken Thailand. One issue is why he would take such a drastic step as to attempt suicide in the courtroom. Khanakorn himself explained that he could not ethically convict the suspects without adequate proof, but he knew his career would be destroyed if he exonerated them. Others, however, have postulated that Judge Khanakorn is suffering from extreme depression and related issues that prompted him to try to take his own life.

In any event, it is a stunning incident, and a sad moment for the judge and for the administration of justice.

 

On terrible judicial optics

Over the weekend, Texas state judge Sarah Eckhardt was forced to apologize after a reporter caught her publicly mocking the disability of the state’s governor, Greg Abbott. Eckhardt made her comment while participating on a panel at the Texas Tribune Festival in Austin. The Federalist reports:

At a panel on leftist activism in cities, Travis County Judge Sarah Eckhardt was railing against the Texas legislature, complaining about how the state is constantly thwarting municipal policy. The Republicans running state government, she said, just want to stop whatever good things the cities are doing—whether it’s plastic bag bans, fracking bans, even local tree ordinances!

Then she said, “Governor Abbott hates trees because one fell on him.” The crowd laughed.

As all Texans know, Abbott was paralyzed from the waist down at age 26 when a tree fell on him while he was jogging on a windy day in Houston in 1984. He has used a wheelchair ever since.

Eckhardt’s comment was incredibly crude, even by our low modern standards, and she was right to apologize. But what was she doing at the Tribune Festival in the first place? It is an environment steeped in rough-and-tumble politics: this year’s speakers included Nancy Pelosi, Ted Cruz, Susan Rice, Julian Castro, and Anthony Scaramucci, among others. The panel on which Judge Eckhardt participated was entitled “Civic Enragement” and its description read: “How progressive politics are turning citizens into warriors and cities into battlegrounds.” Her co-panelists were all politicians; the moderator, a columnist for Vox.

This is no place for a judge to be. Of course, judges have their own political leanings, and in Texas they wear their party affiliations on their sleeves. But what message does it send to the public when a judge so plainly aligns herself with partisan politics and partisan ideology? How could anyone who openly disagrees with her politics ever hope to get a fair hearing in her courtroom? Even leaving aside her sophomoric joke about the governor, Judge Eckhardt has permanently stained any chance to build a reputation as an impartial jurist.

Judges have to make sacrifices when they don the robe, including avoiding activities that they might otherwise enjoy. This is not always fair, but it is necessary, as this sorry episode makes clear.