Texas judge accidentally resigns via Facebook

William “Bill” McLeod, a well-respected Houston-area trial judge, was contemplating running for the Texas Supreme Court in the 2020 general election. Earlier this month, he stated as much on his Facebook page, unaware that such a declaration triggered an automatic resignation from his current position under Article 16, Section 65 of the Texas Constitution.

Harris and his supporters appealed the automatic removal, but this week Harris County commissioners voted 4-1 to uphold the resignation. It appears to have been a difficult decision, given that McLeod was a popular and experienced judge who won a sizable majority in the last election.

Still, there were important countervailing considerations: Continue reading “Texas judge accidentally resigns via Facebook”

Poland’s new “Disciplinary Office” is another political threat to judges

The relentless threats to the Polish judiciary from the state’s ruling “Law and Justice” party have taken yet another distressing turn. Just Security reports on the state’s new Disciplinary Office for Common Court Judges, designed to control and punish individual judges who stand up for the rule of law. As the article notes:

Together with the politicization of the Disciplinary Chamber, the message is clear for all members of the judiciary: follow the party line or face the consequences. Indeed, there are early indicators that most of the disciplinary actions taken against judges so far have targeted judges who have been outspoken on issues of judicial independence and the rule of law.

Alaska governor backs down, will choose judge from existing slate of nominees

Last week, Alaska Governor Mike Dunleavy refused to appoint a state trial judge from the list of nominees provided to him by the Alaska Judicial Council, expressing concern that certain qualified applicants were “inexplicably” not included on the list. In response, Alaska Chief Justice Joel Bolger defended the existing selection process.

The governor and chief justice met to discuss the impasse earlier this week, and seem to have reached an understanding. Dunleavy has now agreed that he must choose a judge from the existing list of nominees. Publicly, the governor has pushed to broaden the list of nominees in the future, which is a perfectly sensible policy discussion to take up. In the meantime, it is good news that this particular kerfuffle has ended with minimal damage.

Growing dockets, many vacancies in the federal courts

I have a new op-ed in The Hill, noting the unfortunate conflation of growth in federal case filing, the mass of ongoing judicial vacancies, and ugly partisanship in the judicial confirmation process. Key grafs:

These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.

Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?

Please read the whole thing!

Tweeting judges: a cautionary tale

A little over a year ago, I took a close look at the phenomenon of judges using Twitter. After examining the professional and ethical responsibilities of the judiciary, I concluded that “judges should not be afraid of using Twitter, as long as they employ it appropriately and with discretion.”

That conclusion still holds, and most judges who are regular Twitter users find a way to make it work without compromising their judicial roles.  But Twitter is still a dangerous medium, as Kansas judge Jeffry Jack is learning this week. Judge Jack, currently a Labette County trial judge, has been nominated by Governor Laura Kelly to the state’s Court of Appeals. But his nomination has run into strong opposition from state lawmakers, after they discovered a number of profane and inflammatory tweets from his account, many of which were directed to President Trump and other prominent conservatives.

To be sure, some Republican lawmakers were already predisposed to vote against Jack’s nomination, based on purely partisan factors such as his apparent support for gun control and the Affordable Care Act. But even Democratic legislators were taken aback by the ferocity and crudeness of Jack’s tweets:

Sen. Vic Miller, a Topeka Democrat who attended a Friday news conference where Kelly nominated Jack, said some of the tweets do not demonstrate a proper judicial temperament.

“If these are genuine, I find them to be deeply troubling coming from a sitting judge,” Miller said.

Exactly. Judges, like all people, are entitled to their political views, and there is nothing wrong with holding those views very strongly. But the judiciary depends on its members displaying an even-handed temperament and maintaining a high level of professional behavior even in their personal lives. Judge Jack’s tweets do not display that temperament, and they raise questions not only about his fitness for an appellate court position, but also for maintaining his current trial job.

Yesterday, Governor Kelly withdrew Jack’s nomination. But don’t be surprised if his tweets become an issue if seeks to retain his trial seat when his current term ends in 2020.

This posted was edited on March 20 to correct the spelling of Judge Jack’s name.

What should we expect when Justices Alito and Kagan testify before Congress this week?

Political theater, to be sure — but of the potentially useful variety.

U.S. Supreme Court Justices Samuel Alito and Elena Kagan will reportedly testify before the House Appropriations Subcommittee on financial services and general government on March 7, to discuss the Court’s annual budget request. It will be the first public hearing on the Court’s budget since 2015; over the last several years, Justices have met privately with Congressional leaders.

The tradition of federal judges (including Supreme Court Justices) testifying before Congress dates back at least to the 1920s, when then-Chief Justice Taft and selected colleagues repeatedly appeared before Congress to discuss pending legislation affecting the courts. But that was in an era before television cameras and Twitter. The purpose and meaning of such hearings has long changed, and the presence of Justices, sans robes, at the witness table is sufficiently unusual these days as to attract quite a bit of attention.

Even though the scheduled testimony is technically about the Court’s budget, everyone seems to understand that financial minutiae will only be a small part of the discussion. Subcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.

The hearing itself is unlikely to break any new ground. The Justices have a strong tradition of circling the wagons on their internal matters, and Justice Kagan in particular has a smooth temperament that helps her avoid stepping into controversy. (She did manage to effectively wrangle the Harvard Law faculty for several years, after all.) Alito and Kagan both understand the nature of the production, as well as the ultimate goal: to get out unscathed.

To the extent Congress and the courts need to coordinate on important issues, one can only hope that they are doing so behind the scenes. The courts have been understandably cautious about communicating directly with Congress on matters of legal interpretation, given separation of powers concerns. But administrative issues are a different animal altogether, and there is ample space for the courts to work with Congress on funding and operational issues which are of important interest to both branches.

Still, while Thursday’s hearing may not produce much that is immediately newsworthy, it is still an important exercise. The Supreme Court has been famously reticent to align many of its practices with modern public expectations, from failing to adopt an ethics code to rejecting calls for courtroom cameras. Congressional hearings put the Justices on the spot to justify the Court’s positions in a public forum, thereby forcing the Court to periodically reconsider whether its existing practices help or harm its public legitimacy.

Neither the Supreme Court nor the federal court system should allow itself to be bullied by Congress or public demand, but there is still room for continuous improvement. The occasional public hearing can be a useful pressure point to bring that improvement to fruition.

 

 

Romania erupts with protests supporting judicial independence

Massive street protests erupted in the Romanian capital of Bucharest this weekend, after the country’s ruling Social Democrat party announced an emergency decree that would strip prosecutors of much of their power, and remove oversight of a prosecuting unit that investigates the judiciary. The party has alleged that the reforms are necessary to prevent “abuses” by the judiciary. Critics say the move is designed to intimidate judges and compromise judicial independence and the rule of law.

The country’s magistrates denounced the decree and staged their own protest on Friday, and the European Union has expressed “great concern” as well.

This has all the feel of the sham “reforms” put forth by Poland’s ruling party beginning in 2017. When any government undermines the rule of law, chaos is sure to follow.