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.

On reforming the Supreme Court

Russell Wheeler at the Brookings Institution has taken a detailed look at the various proposals to reform the composition of the U.S. Supreme Court, from court-packing to term limits. He provides a short history of each proposal (including potential legal stumbling blocks). Most importantly, he determines that at this time, the American public has no real taste for Supreme Court reform — the most significant stumbling block for any court proposal.

Wheeler concludes:

That reasonable people are even debating these proposals speaks to the degradation of the federal judicial appointment process at all levels, a decline that has been building steam for several decades. The once near-ministerial task of appointing and confirming federal judges has stretched from one or two months into sometimes year-long ordeals, even for non-controversial nominees.

Both parties have undermined the guard rails that that once pushed presidents and senators to seek judicial candidates within some broad mainstream of ideological boundaries, even allowing for occasional outliers. Democrats killed the filibuster for most nominees, and Republicans finished it off for Supreme Court candidates and, to boot, ended the home-state senator (of either party) veto of circuit nominees that Republican senators exploited relentlessly to block Obama administration appointees.

Pack-the-court proposals that would normally seem bizarre are understandable in today’s partisan climate. If the federal judiciary becomes a 21st century version of the 1930s judiciary that thwarted a popular push for change, they may even become necessary.

I don’t think we are anywhere near that level, despite the hysteria created by left-leaning partisans and academics. While Republican presidents have appointed more Justices, and while the justices serve longer, on average, than they ever did before, the leftward policy drift of many Republican appointees over time tends to keep the Court much more balanced than it might seem at the time of a Justice’s confirmation.

The battle over the Court is, in my mind, partially a spillover from the current partisan battles in the other branches and partially a reaction to the Republican Party’s successful focus on judicial appointments since the Reagan administration. When bipartisanship in Congress has eroded as badly as it has, it seems inevitable that both parties will seek to punish each other to the extent they can in the realm of judicial nominations. And the undeniable success of Republican administrations in populating the federal courts over the past forty years has left Democrats in a state of agitation, bordering on desperation.

I do not know if and when some sense of bipartisan responsibility and decorum will return to Congress. But until then, radical proposals to reform the Court are likely to constitute ongoing collateral damage.

Alaska Chief Justice recuses himself in gubernatorial recall case

Alaska’s Chief Justice, Joel Bolger, has recused himself from a case involving the legality of a campaign to recall the state’s governor, Mike Dunleavy. Bolger made the decision in light of his previous statements criticizing the governor for failing to follow established procedures in appointing a district judge. Bolger also told audiences that Alaskans should resist “political influence” over the judiciary and should fight for judicial independence.

The Court invited interested parties to file motions seeking Bolger’s recusal, with a February 26 deadline. No motions were received, but Bolger determined on his own that recusal was appropriate. In a two-page Recusal Notice, he stated:

As stated previously, I do not have any personal bias or prejudice concerning the parties or attorneys involved in this case.  However, I have special public responsibilities as the administrative head of the Alaska Court System and as the chairman ex-officio of the Alaska Judicial Council.  In those capacities, I have made public statements that could suggest a strong disagreement with the governor’s conduct on some very fundamental issues affecting the judicial branch, conduct that forms part of the basis for the recall petition under consideration.  In other words, this is a case where a reasonable person might question whether my judgment is affected by my overriding public responsibilities to the justice system.

Earlier thoughts on Bolger’s comments, and the propriety of judges speaking out, here.

The Court will consider the legality of the recall on March 25, with retired Justice Robert Eastaugh filling in for Bolger. It is widely expected that the Court will uphold the validity of the recall effort.

Still more embarrassment for the “Chicago Way” of choosing judges

Over the past three years, his blog has tracked the litany of shocking stories coming out of Chicago area judicial elections — shocking, that is, for anywhere except Cook County. There, it seems, the sulfurous mix of identity politics, voter ignorance, and unscrupulous candidates is a way of life.

This week, the Chicago Sun-Times and Injustice Watch added another depressing data point: “sham” judicial candidates who are placed on the ballot simply to confuse voters and throw the election. Here’s how it is alleged to work: when it appears that a candidate preferred by the city’s Democratic establishment is at risk of losing a judicial race, one or more “sham” candidates will enter the race and be added to the ballot. The “sham” candidates are not real, in the sense that they expend no money on the campaign, conduct no campaign events (and often barely have a campaign website), and don’t seem sincerely interested in a judicial post. But these “sham” candidates do have something in common: names that appeal to voters’ identity politics (which is Chicago, translates mostly to feminine -sounding first names and Irish surnames). The expectation is that voters, who have done no research on the judicial candidates on the ballot, will simply vote for those who sound like Irish-American women. (And there is proof that this expectation plays out in real life.) The “sham” candidates confuse enough voters to draw votes away from the non-establishment candidate, allowing the establishment candidate to prevail.

It’s doesn’t always work. The article, for example, relates how the presence of alleged “sham” candidate Bonnie McGrath in 2016 was not enough to prevent the victory of non-establishment candidate Carol Gallagher. And the alleged “sham” candidates have protested that despite their utter lack of campaign activity, their desire to be judges is sincere. But let’s be honest: the entire process is still shameful — or at least it should be, if the party bosses behind this ruse were capable of shame.

 

New York judge calls for reform to state bail law

Earlier this year, New York State’s poorly thought-out bail reform law formally went into effect. (New York City courts began implementing it even earlier under the directive of Mayor Bill de Blasio.) The law requires state judges to release criminal defendants without bail except in the most egregious cases. While the law was intended to address perverse effects of existing bail laws on minority communities, it backfired spectacularly from the very start. In December, a woman accused of an anti-Semitic attack on the streets of New York City was released even after admitting her deed; she was involved in another criminal incident less than 24 hours later (and eventually was charged with federal crimes for which bail is required). She was not alone: many stories have identified criminal defendants who were released without bail despite being charged with violent crimes; some of the defendants have even expressed their own surprise at being released. Both de Blasio and New York Governor Andrew Cuomo, who initially championed the legislation, have publicly announced that they have had second thoughts.

The law is deeply problematic because it denies state judges a role fundamental to their jobs: the discretion to determine the conditions under which a criminal defendant should be released. Now some judges are speaking out against it themselves. At a recent forum, Bronx Criminal Court Judge George Grasso called for immediate efforts to change the law:

Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.

“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”

“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”

This is a noteworthy development. Judges typically do not speak publicly on the state of the law, even laws that directly affect the administration of courts and the justice system. Offering a personal opinion on the validity or effectiveness of a law opens a judge to charges of bias or partiality. So it takes a real crisis for judges to feel the need to speak out so publicly.

And Judge Grasso is right. Whatever its original intent, the new law ties the hands of the courts, makes New Yorkers less safe, and reduces public confidence in the criminal justice system.