Tag: law and politics

EU to Romania and Bulgaria: Not enough progress on judicial reform

This week, the European Commission issued its latest reports on the justice systems of two EU member states, Romania and Bulgaria. Both states have made slow progress in positively reforming their judicial systems, but  the Commission concluded that in both states, momentum for reform was lost in 2017.

Both countries have tried to put a positive spin on the report, noting they still have work to do. But they will be under renewed pressure to move closer to the Commission’s anti-corruption and transparency goals, especially in light of the significant threats to judicial independence that emerged in neighboring Poland earlier this year. The Commission’s mandate to monitor reform in both countries expires in 2019.

The full Commission reports can be found here.

 

Venezuelan judge seeks refugee status in Canada

The swirling political and financial chaos in Venezuela has been closely coupled with the ongoing desecration of judicial independence by President Nicolas Maduro’s regime.

Now the evidence of that desecration is starting to gush out.  Toronto’s Globe and Mail has published a story on Venezuelan judge Ralenis Tovar, who fled to Canada with her family in July and is now claiming refugee status there. Judge Tovar alleges that as a judge in Caracas, she was forced to sign arrest warrants for Maduro’s political enemies.  She further claims that the Maduro government tapped her phones and even attempted to kidnap her daughter from school.

From the Globe and Mail interview:

On her way home from work on Feb. 12, 2014, Ms. Tovar received a series of phone calls from an unknown number. Assuming it was an inmate, she didn’t answer. Then the president of Venezuela’s Supreme Court phoned and told her to pick up the calls. She did and was told to head back to the office.

Ms. Tovar said the court was surrounded by the National Guard and military intelligence officers when she arrived. She was greeted by four public prosecutors, who guarded her office’s door as she sat down.

She was given a folder with three arrest warrants inside. She said she didn’t recognize the first two names, but was shocked when she read the name on the third warrant: Leopoldo Lopez.

“I felt petrified because internally I knew what was the purpose of that warrant, which was to silence a political leader who was an obstacle for President Maduro,” Ms. Tovar said.

Given that it was 2 a.m., Ms. Tovar asked the prosecutors if she could review the warrant the next day. She said they laughed sarcastically and told her that if she didn’t sign it, she would end up like Maria Lourdes Afiuni, a Venezuelan judge who was allegedly raped in prison in 2010.

Terrified, Ms. Rovar signed Mr. Lopez’s arrest warrant.

Judicial independence and political freedom go hand in hand.  When one erodes, the other cannot be far behind.

Ohio Supreme Court Justice (finally) agrees to recuse himself from all new cases in light of pending gubernatorial run

Ohio Supreme Court Justice William O’Neill, who last week publicly announced his intent to run for governor, has now announced that he will recuse himself from all new cases coming before the Court. O’Neill previously indicated that he would continue to hear new cases, a position which drew considerable criticism from the state auditor.

O’Neill is currently the sole Democrat holding statewide office in Ohio. He has said that he will remain on the Court until he formally enters the race in February. In the meantime, he will campaign and raise money for his gubernatorial run.

Justice O’Neill may be legally permitted to campaign for governor while still on the bench. In a series of cases over the past decade, the Supreme Court has affirmed the First Amendment rights of judges to solicit campaign funds and publicly state their general positions on policy issues. But First Amendment rights do not parallel professional responsibilities, and running a political campaign from the bench can do untold damage to the judiciary’s legitimacy.  Justice O’Neill is free to seek another elected job, but he should resign from his current one first.

 

Kenya’s Supreme Court schedules, then fails to attend, emergency hearing to postpone presidential election

Kenya’s court-ordered repeat presidential election is scheduled for today, and the situation is a mess. Opposition leader Raila Odinga has asked his supporters to boycott the event, and there appears to be widespread confusion about how the process is supposed to work.  The country’s electoral chief himself has stated that he has no faith that the country can deliver a free and fair election.

Within this maelstrom, there was a last-minute effort this week to ask the Kenyan Supreme Court to postpone the election. A hearing was apparently scheduled for Wednesday morning. But only two of the seven justices showed up for the hearing, making it impossible for the court to hear and render a decision. Among the missing justices was Philomena Mwilu, whose driver/bodyguard was shot and killed Tuesday night.

Early reports from today’s election have already centered on violence and clashes between police and protesters.

Kenya’s judiciary remains under pressure

The Wall Street Journal has a good summary story on the pressures that the Kenyan judiciary has faced since its Supreme Court invalidated the country’s presidential election last month.  In the run-up to the new election (scheduled for later this week), judges have faced direct threats, and the court system as a whole has faced substantial indirect threats of “judicial reform” — which everyone seems to understand as a potentially substantial cutoff in funding.

Observers of the American court system often speak of the importance of judicial independence, and rightly so. But for much of the world, third branch independence is a far more existential issue than in the United States. Threats to judicial independence are not an issue of verbal criticism, but rather of physical attacks or the diminution of critical resources. We would do well to pay more attention to these threats worldwide.

(Link may require subscription.)

Twelve-year old federal court vacancy in North Carolina one small step closer to being filled

Since 2005, the United States District Court for the Eastern District of North Carolina has had an open seat, the product of partisan bickering in the Senate. George W. Bush nominated attorney Thomas Farr for the seat in 2006, but Senate Democrats failed to process the nomination.  Barack Obama subsequently nominated two different women to the seat during his presidency, but both nominations were blocked by Senate Republicans.  Now Donald Trump has come full circle, re-nominating Farr for the same seat.  And despite deep opposition by Democrats, Farr’s nomination advanced out of the Senate Judiciary Committee yesterday on a straight party-line vote.

It’s unclear who benefits from this partisan rancor, but it is very clear who loses: the courts and the public. For a dozen years since Judge John Malcolm took senior status, the Eastern District has been down an active district judge. Given that the district is only authorized to have four active judges, the court has been operating at only three-quarters capacity for more than a decade — and through no fault of its own.

I have no opinion on whether Mr. Farr is the right man for the job. But the public should reject as outlandish that the seat was not filled by someone long ago.

 

Former federal judge to run for U.S. Senate

Russell Fagg, who recently retired from a life-appointed position as a United States District Judge in Montana, announced yesterday that he will seek the Republican nomination for the U.S. Senate from that state. The winner will oppose incumbent Jon Tester in 2018.

Judge Fagg is hardly the first jurist to seek a position in another branch of government — former Alabama Chief Justice Roy Moore recently won the Republican Senate nomination in that state, and another former Alabama Chief Justice, Sue Bell Cobb, is running for governor. In the other direction, many Supreme Court Justices (among them John Jay, William Howard Taft, Hugo Black, and Sandra Day O’Connor) came to the bench after extensive careers in the executive and/or legislative branches.

Judge Fagg is touting his judicial experience — more than 25,000 cases during a 22-year career. And there is something to be said for having a jurist’s mindset in the legislature — one that is capable of coolly and dispassionately evaluating complicated matters. Of course, having that mindset does not mean that one will use it, and the Senate has not exactly been a paragon of reasoned deliberation in recent years. But it will be interesting to see whether — and how — Montana voters account for Judge Fagg’s third branch experience as the race heats up.

 

California makes its judicial elections marginally less awful

Governor Jerry Brown has signed a bill requiring judicial candidates in California to appear on the ballot with “actual government job titles” rather than fanciful designations designed to elicit emotional voter reaction.  In recent elections, candidates have sought and received ballot designations like “Child Molestation Prosecutor” and “Gang Murder Prosecutor.” Under the new law, candidates will have to list either their formal job titles (e.g., “City of Los Angeles Deputy City Attorney”) or provide a short, neutral description of their work (e.g., “Attorney at Law”).

The bill had broad bipartisan support, and it is not hard to see why. Allowing candidates to select their own designations may spur the voter reaction needed to win (who doesn’t love a “Gang Murder Prosecutor”?), but badly poisoned the impartiality and legitimacy of California’s elected judiciary. How could any criminal defendant hope for a fair trial before a judge who owed his election to that prosecutorial slogan? Even if the judge was able to transition to a mode of impartial decisionmaker — which many prosecutors have done with great success — who would believe it?

This was, then, an eminently sensible move. But Californians should hardly be complacent. The state’s more than 1500 trial judges are still chosen by popular election, and there is little reason to be confident that merely removing the most egregious designations from the ballot will improve matters much. Over the years, the state’s judicial elections have been poisoned by ethical lapses, the flow of money into campaign coffers, and political dog-whistling.  And there is an alternative: the state uses gubernatorial appointment to fill unexpected vacancies on the trial court (due, for example,  to death, retirement, or promotion), and that process that could be extended to all trial court selection. True, it would take a constitutional amendment, but many states have done just that over the past 70 years.

I am not holding my breath just yet. But until serious judicial election reform comes to the Golden State, Californians are merely editing out the worst excesses of a lousy system.

Australian High Court to determine eligibility of seven MPs to serve in national government

In an interesting example of governmental interdependence, the High Court of Australia will consider this week whether seven Members of Parliament should be disqualified from their elected positions because they hold dual citizenship. Australia requires its MPs to be Australian citizens; the affected legislators are all technically dual nationals, most of whom share citizenship with New Zealand.

That a court should have to make this decision is not itself particularly intriguing. But there are several unusual and interesting dimensions. First, the hearing will take place over three days — significantly longer than, say, the one hour that the U.S. Supreme Court typically allows for cases of similar importance. Second, the decision will have significant ripple effects, especially if the MPs are ruled to be ineligible. Australia’s narrow governing coalition may be put at risk, new elections will have to be called, and earlier decisions made by the MPs (two of whom are also government ministers) could be challenged. Third, the problem might have been avoided long ago: the dual-citizenship issue has been on the political radar for two decades or more, but all efforts to amend the country’s Constitution to address it have lost steam. Ultimately, the High Court will have to make a legal decision with potentially profound political consequences.

Some additional reactions from Down Under can be found here and here.

 

Catalonian judiciary seeks extra protection ahead of independence push

These are tumultuous political times in Catalonia, which voted last week to declare independence from Spain. (The Spanish government argues that the vote, and any subsequent action, are illegal.)  The independence declaration, which may come Tuesday, has spurred the regional judiciary in Barcelona to request extra police presence. Currently the court building is protected by police loyal to the Catalan government; the President of the High Judiciary of Catalonia is requesting further presence by the National Police force.