Electoral chickens come home to roost in North Carolina courts

Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.

The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.

There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).

So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).

Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.

 

Senate Democrats to boycott Barrett confirmation vote, replacing themselves with cardboard cutouts

Please tell me this is a joke:

Democrats on the Senate Judiciary Committee plan to boycott Thursday’s committee vote on Amy Coney Barrett’s Supreme Court nomination as a protest against Republican efforts to rush her through before the election.

The plan hasn’t been finalized yet, according to a Democratic aide, but Democrats are preparing to fill their empty seats with poster-sized photos of people who would be hurt by Barrett potentially casting a deciding vote against the Affordable Care Act. These would be the same pictures of people Democrats had on display during Barrett’s confirmation hearing last week.

Sadly, it appears to be real. Rather than upholding their Constitutional responsibility to vote a Supreme Court nominee, Senate Democrats are planning to replace themselves with cardboard cutouts for cheap political gain. In doing so, they will:

    • Send the message to undecided voters, just days before a major election, that they are not serious about their fundamental responsibilities;
    • Sow the ground for Republicans to pull a similar stunt (perhaps with cardboard cutouts of aborted fetuses) the next time the Democrats have a Senate majority and a Supreme Court nominee; and
    • Provide some free advertising for South Park and Bud Light.

My goodness. What have we become?

On Biden, the Court, and what voters “deserve to know”

Joe Biden’s refusal last week to state whether he supports the Court-packing scheme advanced by several prominent members of his own party, and his insistence that voters “don’t deserve” to know where he stands on the issue, has drawn understandable scrutiny. Several commentators have attempted to dissect both the political cynicism behind the proposal and Biden’s strategy for declining to comment on it. (In particular, I recommend the first dozen minutes of this Commentary podcast as well as this op-ed by Gerard Baker in the Wall Street Journal).

I want to focus here on what the kerfuffle means for Biden post-election, since it seems very likely that he will win the Presidency next month. As Baker points out (behind a paywall, unfortunately), “even Mr. Biden—something of a procedural conservative—must be aware how grotesque the idea [of court packing] is. The prospect of a high court turned into an adjunct of the executive and legislative branches, staffed by black-gowned, forelock-tugging accessories to untrammeled political excess, must surely give him pause.”

Baker is right. Biden is too steeped in the Washington politics of the last fifty years to not be a traditionalist on this issue. Indeed, he has had three decades to reveal himself as a disruptor of court structure, both as a high-ranking member of the Senate Judiciary Committee, and as Vice-President. To be sure, he has spearheaded legislation that has changed court operations, and he bears heavy responsibility for setting the tone of current Supreme Court confirmations with his behavior during the confirmation hearings of Robert Bork and Clarence Thomas. But he has nevertheless conducted himself according to the standards of twentieth-century American politics: play hard, and don’t kick the game board over just because you think you’re losing.

The extremists in his party disagree, and are embracing the vision of converting the Court into an arm of the progressive movement by brute political force. This  development should concern all who believe in preserving the delicate balance between court independence and interdependence, and indeed the proposal is playing very poorly with most voters. (Perhaps in a nod to this reality, Biden himself finally stated that he was “not a fan” of court packing in a radio interview on Monday.)

Progressive extremists will certainly put pressure on a Biden Administration to force the court-packing policy into existence, especially if Democrats win the Senate in November.  And of course Biden, like any President, would feel some compulsion to support the legislative agenda from a same-party Congress. But some of the more senior legislative members of his own party recognize the inherent dangers (political and structural) of court-packing, and would likely try to to slow down any movement, especially in the Senate. Moreover, there is no significant reason to believe that his White House would simply be a vessel for extreme progressives. Biden is a wily veteran in Washington. No matter how he may project on the camoaign trail, he surely knows how to wield the levers of power behind closed doors.

Bottom line: A Biden Administration will not support court packing and will try to deemphasize it. Look for Biden to lean on Nancy Pelosi, and others who have been burned by aligning themselves with their intraparty radicals, for assistance in tamping down the extremism. Biden’s position may prove to be a last stand, depending on the growth of the radical progressive wing of the Democratic Party, and court-packing may remain as an issue in 2024. But a lot will happen between now and then, and the short-term likelihood of this terrible policy proposal coming to fruition is probably slimmer than it appears.

Jurisdiction stripping is back, this time from the left

Here’s something I wrote about federal judicial accountability:

Many commentators have praised Article III’s guarantees of life tenure and freedom from salary cuts as essential tools to preserve judicial independence. Far less frequently have the commentators explored the impact of these guarantees on judicial accountability. Rather, until relatively recently, the prevalent assumption (dating back to the original Federalist debates) has been that “the perceived need for judicial accountability to counterbalance life tenure, nonreducible salaries, and judicial review, began and ended with the impeachment mechanism.” A reexamination of that assumption, however, has been sparked in the early twenty-first century both by academic commentators and some in Congress. The last ten years alone have produced a host of creative— sometimes outrageous—alternatives to promote federal judicial accountability through (in most cases) a combination of executive and legislative power and populist sentiment. Some such proposals are effectively substance-neutral, most notably replacing life tenure with fixed, lengthy judicial terms. Other proposals, however, are aimed at the substance of judicial decision-making, among them several schemes to strip federal courts of jurisdiction to hear certain types of cases. Prominent politicians have even occasionally threatened impeachment—or worse—for federal judges as a punishment for decisions they did not find appropriate. Contributing to the tenor of politically “accountable” judges is a federal judicial appointment process that has become increasingly partisan in the last two decades.

This paragraph was part of the introduction to an article I co-wrote twelve years ago, and yet it feels surprisingly fresh. The difference is that while many of the efforts to subject the court to populism and political sentiment a decade ago came from conservatives, today those same views are being embraced by the liberal establishment. Countless bad ideas — Court packing, term limits, and the like — continue to emerge, with the most recent being the rediscovery of jurisdiction-stripping. Bloomberg Businessweek explains:

Some liberal proponents believe jurisdiction stripping could help Democrats shield bold future legislation from damaging court battles. In theory a Democratic Congress could pass a health-care plan or a Green New Deal with a provision stipulating that the legislation lies outside the bounds of Supreme Court review.

Under variations of the jurisdiction-stripping proposal, Democratic lawmakers could also limit the ability of lower courts to review legislation or could confine legal challenges to geographic regions where courts are generally sympathetic.

Let’s be clear about what’s happening. Today’s politicians, unable or unwilling to do the hard work of compromise and dealmaking, are leaving the courts to make sense of hastily written and sloppy laws. When lawmakers don’t like the results, they propose extreme “fixes” which would deny the courts the ability to do even their core adjudicative work. This is wrong, whether it comes from the right or the left, and is symptomatic of how awful our political class — and their academic enablers — have become.

Judicial Watch head nominated for D.C. judicial commission

Shortly before entering the hospital for treatment for COVID-19 last week, President Trump nominated Tom Fitton, the head of Judicial Watch, to join the D.C. Commission on Judicial Disabilities and Tenure. The Commission oversees the District of Columbia judiciary (essentially D.C.’s equivalent of state judges) and has the power to remove judges for misconduct, as well as physical or mental incapacitation.

Fitton has been outspoken in opposition to the Mueller probe and critical of the Obama Administration, and plainly has ingratiated himself with the President. While Trump has the authority to nominate anyone he likes to the commission, the open partisanship of this choice will do little to build public confidence in the fairness or impartiality of the Commission.

Turley on court packing

Jonathan Turley has been a voice for sanity among legal commentators during the tumultuous past year. His new op-ed at The Hill, which looks at the dangers and irony of Democrats’ court-lacking schemes, continues his tradition of strong and reasonable analysis. A snippet:

For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be some kind of litmus test. Democrats have pledged to add new justices to ensure a bench that will vote to uphold or overturn cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes like voting to uphold Roe. This rationale has reached truly dystopian levels, with former White House counsel John Dean insisting that, by creating a new ideological majority, Democrats would remove politics from the Supreme Court.

Litmus tests and the idea to pack the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. It would obliterate an institution that has preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will evaporate if Democrats conduct litmus tests or pack the bench.

The whole article is well worth the read.

The political calculus: Who WILL be the Supreme Court nominee?

Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.

But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.

I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.

Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”

The political calculus: Who SHOULD be the Supreme Court nominee?

Second in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

In an earlier post, I attempted to flesh out the political landscape surrounding any potential Supreme Court nomination. With President Trump announcing his plan to name a nominee at the end of this week, I now turn to whom he should nominate from a strategic standpoint.

I note at the outset that this is a question of politics, not whether the nominee is necessarily the best fit for the Court. While all the likely nominees are well-qualified on paper, the President’s calculus is not (nor has it ever been) about the Court’s best interests. It is about making political hay. And that is the lens through which I approach the question.

I also leave aside the question of whether the President should decline to send a nomination until after the election. That is, of course, the overarching partisan game, which I explored previously. I assume here that the President will make a nomination within the timeline he has provided, that Senator Mitch McConnell will do everything he can to bring that nomination to a vote before November, and that Senate Democrats will do everything in their power to avoid that vote.

With that in mind, the most conventionally strategic nominee is Sixth Circuit judge Joan Larsen. As I have detailed elsewhere, Judge Larsen is a highly intelligent, thoughtful, and well-qualified judge from Michigan, a political swing state which will play a big role in the upcoming Presidential election. Beyond her qualifications, her nomination poses practical problems for Democrats, who do not want to be seen as opposing a female nominee — especially one who sailed through the Senate just three years ago when she was nominated to the U.S. Court of Appeals. Larsen is also popular among voters in her home state, where she was resoundingly reelected to the state supreme court in 2016.

By nominating Judge Larsen, the President would score a political victory no matter what happens during the confirmation process. If the Senate confirms her, Trump can claim victory, charge up his base, and score valuable political points among swing voters in Michigan. If Senate Democrats manage to forestall a vote, Trump can turn that delay into a high-profile campaign issue, deflecting attention from the Biden campaign’s efforts to focus the election on COVID and Trump’s personal behavior.

Judge Larsen is reportedly on the five-person short list under consideration by the President, so her nomination is very possible. And while the qualities of the nominee are secondary to scoring political points — at least to this President — her confirmation would be a positive for the country and the Court. There is little doubt in my mind that she would make an excellent, thoughtful, respected Supreme Court Justice.*

So who will be the Supreme Court nominee? I offer some thoughts in the next post.

* CNN apparently agrees. In a photo caption yesterday, they already referred to Judge Larsen as Justice Larsen.

The mortifying state of our Supreme Court confirmation politics

The first of a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg

So here we are, not even five years removed from the embarrassing political melee that followed the death of Justice Antonin Scalia, and the same movie is playing out in even more absurd fashion.

Senator Mitch McConnell (R-KY) is working the Republican back benches to ensure a yes vote for the President’s Supreme Court nominee — never mind that there is, as of yet, no nominee to vote on. This is the same Senator McConnell who refused to even hold a hearing for then-nominee Merrick Garland in 2016 on the flimsy pretext that it was too late into a election year. To call McConnell’s reversal hypocritical is an insult to hypocrisy.

Remarkably, the Democrats have acquitted themselves even more poorly. After hectoring the American public in 2016 with the smug insistence that the Senate must vote on the Garland nomination (using the Twitter hashtag #DoYourJob), and after four years of accusing the Republicans of “stealing” the seat by not holding a hearing for Garland, the Democrats now declare —with no apparent sense of irony — that they will do everything possible to prevent a vote on the as-yet-unnamed nominee. The charge has been led, most distressingly, by the Democrats’ own Vice Presidential candidate Kamala Harris, who previously pledged to shirk her Senate duties by refusing in advance to vote for any Trump appellate court nominee, and who now promises an extended vacancy crisis in connection with her efforts to raise campaign funds

How did we get here? Continue reading “The mortifying state of our Supreme Court confirmation politics”

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”