Tag: law and politics

Rhode Island House passes magistrate bill

On Wednesday, the Rhode Island House of Representatives overwhelmingly passed a bill to create an unlimited number of new magistrate judges for its state court system. The bill was controversial, in that many of the state’s existing magistrates have been appointed outside of the prescribed process. State judges are supposed to be appointed through the state’s Judicial Nominating Commission, which provides opportunities for vetting and public input. Many magistrates, however, appear to have received their appointments as political favors.

As I noted previously, this is a tough spot for the Rhode Island court system. The additional magistrates will be welcomed to help with the courts’ work, but the court system as a whole could lose legitimacy if the public lacks confidence in the appointment process.

 

On the Aaron Persky recall

Today, California voters go to the polls to determine whether Judge Aaron Persky should be recalled. Persky, of course, is known for handing an extraordinarily light sentence to Brock Turner, the Stanford swimmer convicted of three counts of sexual assault.

Turner’s conduct was unconscionable, and his sentence shockingly light. But the effort to recall Persky for that single act of sentencing is itself an awful idea that should have been put down long ago. Here is what I wrote last July:

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Judicial recall, non-retention, and impeachment are all tempting weapons of the outraged class who seek to remove or punish a judge for a single controversial decision. California is no stranger to this sort of activity. In 1986, three state supreme court justices were successfully targeted for non-retention based on a single decision the court had rendered on the death penalty. Across the country, similar efforts have targeted judges for their decisions on everything from same-sex marriage to the disposition of property. Attacks have come both from the left and the right. The unifying theme of these efforts has been to try to wedge a judge’s entire career into a single decision. Never do they even attempt to consider or reflect upon the judge’s overall performance, skill, or temperament.

That is because efforts such as this serve one purpose: to score political points. Sometimes the goal is to drive voters to the polls in a general election to improve a political party’s overall prospects. Sometimes the goal is tactical, to create an opening on the bench that could be filled by a politically like-minded politician. Sometimes it reflects a deep misunderstanding of the judge’s ruling. Sometimes it is mere virtue signalling.

So it is here.  I have seen nothing to indicate that those seeking to recall Judge Persky have ever previously expressed concern about his fitness as a judge. He has already been cleared of any abuse of discretion by a state commission. And while a comprehensive judicial performance evaluation program would provide helpful context on Judge Persky’s overall body of work, California has no such program.

One can be shocked and angered by the Brock Turner sentence and still see this recall effort as for what it is: a transparent and poorly thought-out effort to score points with a political base. Californians deserve better.

Mob justice is no justice. Will Californians preserve judicial independence (flawed as it may be) against the wrath of the mob, or will they sacrifice their judicial system to the political vultures? Today I am hopeful, if not terribly optimistic, that they will do the right thing.

Sitting Alabama justices endorse candidate in upcoming partisan primary

Here is something I have never seen before. Seven sitting and former justices of the Alabama Supreme Court publicly endorsed Chief Justice Lyn Stuart in this week’s upcoming Republican primary. Stuart replaced former Chief Justice Roy Moore after he was suspended in 2016; she is now seeking a full term.

There are a number of unusual circumstances here. Stuart stepped into a difficult position after the Moore suspension, and obviously won the support of her colleagues. And her opponent, Associate Justice Tom Parker, is a close associate of Moore. It is likely good politics to place the more moderate Stuart in the partisan general election against a Democratic challenger. Parker seems to be a mini-Moore when it comes to inciting controversy.

But this is still a highly unusual move. Judges generally stay away from political endorsements or similar activity, for fear of comprising their legitimacy as nonpartisan arbiters of the law. Moreover, the the sitting justices here chose between two colleagues on the bench. That will make for an awkward summer around the courthouse. And what if the Democratic candidate wins the general election? (Unlikely in Alabama, but we know it can happen.)

Partisan elections places judges and judicial candidates in countless compromising positions. Here is another piece of evidence to that effect.

Former Israeli Supreme Court President defends private meetings with Prime Minister

Miriam Naor, the former President of Israel’s Supreme Court, recently gave a rare public interview in which she defended her private meetings with Prime Minister Benjamin Netanyahu while serving on the Court. Naor maintained that she was appropriately discussing major legislation that would effect judicial branch operations. Critics argue that such meetings could compromise the integrity of a court that could eventually hear criminal charges against the Prime Minister.

This is a delicate thing. As I have noted regularly on this blog, most courts worldwide depend significantly on the other branches of their respective governments for resources and enabling legislation. It is both pragmatic and smart for the administrative head of a court system to share judicial concerns and perspectives with lawmakers. But closed-door meetings invite the perception of an improper, closer-then-arms-length relationship between the branches and their representatives.

Rhode Island state courts to receive new magistrates, but not without controversy

The Rhode Island court system recently received good news when the state’s House Judiciary Committee approved a bill that would allow the Chief Judge of the District Court to appoint an unspecified number of new magistrates. Currently, the District Court is operating with only two magistrates.

But the bill’s advance remains controversial. Other judges in the state are vetted by a nominating commission before being appointed by the governor. And over the past 25 years, many of the magistrates who were appointed outside the political process have had political connections. (Indeed, many are former legislators.) Can Rhode Island balance the resource needs of its court system against political patronage concerns that could erode the courts’ legitimacy?

Arkansas judges issue conflicting orders on judicial election attack ads

I reported last week on a lawsuit brought by Arkansas Supreme Court Justice Courtney Goodson against the Judicial Crisis Network, a special interest group that has been running attack ads against her in the days leading up to the state’s nonpartisan supreme court election. Justice Goodson’s initial request for a temporary restraining order was granted by one trial court, with the understanding that a more complete hearing for a preliminary injunction would take place later in the week.

On Friday, that hearing did take place — in front of a different judge after the original judge had to recuse due to a conflict. The new judge, Pulaski County Circuit Judge Chris Piazza, found that Justice Goodson was likely to prevail on the merits of her claim, and granted the preliminary injunction, thereby blocking all television stations from running the attack ads. But in a strange twist, just hours later a second judge in the same circuit declined to grant the injunction in a parallel case. The dual outcomes mean that voters in some parts of Northwest Arkansas have been able to see the attack ads in the final days of the campaign, while others have been barred from doing so.

An excellent summary of the events, with far more detail than I care to set out here, can be found in this Arkansas Online story.

As I previously noted, this case raises a variety of important issues–about freedom of expression and its limits, the power of injunctions, and the wisdom of electing judges. We’ll continue to follow it through Election Day and beyond.

A rapid judicial appointment cascade

The White House recently announced that President Trump had nominated Judge A. Marvin Quattlebaum to a seat on the Fourth Circuit Court of Appeals. Judge Quattlebaum currently sits as a federal district judge in South Carolina–a position he has held for only two months.

There is nothing inherently wrong with seeking to promote* Judge Quattlebaum to the appellate bench. But choosing a sitting district judge will once again create a vacancy in South Carolina, and that vacancy may take much longer to fill. Politics may well dictate filling appellate benches, especially in election years. But the trial courts, the place where the public most closely and commonly interacts with the judicial system, risk becoming the forgotten child. They deserve to filled as rapidly, and with as much care, as do appellate court vacancies.

* Many on the federal district bench would quibble with this term: the trial judges are the real judges! I use it here only in the sense that the Fourth Circuit is higher in the federal hierarchy.

Federal judiciary issues $7.22B budget request for FY19

Representatives of the federal judiciary testified before the House Appropriations Subcommittee on Financial Services and General Government today, issuing a budget request for $7.22 billion for Fiscal Year 2019. The request reflects an overall increase of 3.2 percent to maintain current services and fund priority initiatives — including $95 million for cybersecurity.

Seven billion dollars is nothing to sneeze at, but it represents a tiny fraction of the overall national budget (currently proposed at $4.41 trillion for FY19). The requested judicial budget is one percent of the White House’s 2019 allocation for national defense alone. It is, in the end, a remarkably small amount of money to fund the operations of  an entire branch of government.

N.B. — in the link above, the U.S. Courts helpfully included a video of the entire hearing before the House Appropriations Subcommittee. Remarkably, this act of transparency did not hopelessly compromise the integrity of the federal judiciary. It’s time to bring similar video technology into the courtroom.

More politicization of state judicial elections

Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:

“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”

Ugh.

Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.

Connecticut Senate rejects McDonald nomination

Connecticut Supreme Court Justice Andrew McDonald’s bid for that court’s chief justiceship came to an end yesterday, when the state senate rejected his nomination by a 19-16 vote. One Senator abstained due to personal conflicts.

The nomination seemed troubled from the start. McDonald has been a close political associate of Connecticut Governor Dannel Malloy for years, and that affiliation hurt him during the confirmation process. He drew a 20-20 tie vote in committee, and barely passed through the Connecticut House on a 75-74 vote. In the Senate, his nomination was opposed by every Republican, as well as one Democrat.

Some have been quick to blame the failed nomination on McDonald’s status as an openly gay man, suggesting that the opposition was driven by homophobia. But cooler heads have pointed out that McDonald was not helped by Malloy’s animated approach to the nomination, which evidently included promises to fill the next open seat on the court with a Republican. If anything, McDonald’s nomination was undone by classic politics — that is, authentic disputes over public policy — rather than modern identity politics. Better than his nomination had not come down to politics at all, but the insinuation that he is not chief justice today because of his sexual orientation is offensive to all sensible people.