Tag: law and politics

Mexico elects new chief justice amid intrigue

The eleven justices of Mexico’s supreme court have elected Norma Lucia Piña as their new chief justice. Chief Justice Piña will be the first woman to lead the court in its history.

The 6-5 vote carried a fair bit of intrigue. Mexico’s President, Andrés Manuel López Obrador, had backed Justice Yasmín Esquivel for the position, and apparently had pressured the other judges to support her candidacy. But Justice Esquivel was also battling under allegations that she had plaigiarized her senior thesis while an undergraduate in the 1980s. Lopez Obrador subsequently demounced the result of the election, arguing that “the judicial branch has been kidnapped … has been eclipsed by money, by economic power.”

Piña stressed the importance of judicial independence in her first remarks as chief justice. It sounds like there will be some turbulent times ahead.

Illinois Supreme Court puts hold on cashless bail plan

The Illinois Supreme Court has stayed implementation of legislation that would eliminate cash bail in the state. The law known as ther Pretrial Fairness Act was set to go into effect on January 1. WTTW reports:

Roughly half of the state’s elected prosecutors had sued to stop the law from taking effect. On Wednesday, they won when Kankakee County Judge Thomas Cunnington issued an opinion that found the Pretrial Fairness Act unconstitutional. Cunnington said for the legislature to dictate pretrial detention procedures violated the separation of powers.

Cunnington’s opinion allowed the 65 counties that were party to the lawsuit to keep their current bail system in place.

But Illinois Attorney General Kwame Raoul said that Cunnington did not enter an injunction, so the 37 counties that were not part of the suit could move forward with cashless bail, and judges in all of Illinois’ 102 counties could choose to follow the Democrat-backed Pretrial Fairness Act if they so choose. That would have created a situation leading to a lopsided criminal justice system in which defendants would be treated with drastically different approaches where they were arrested.

In the short term, the state supreme court’s stay prevents inconsistent application of cash bail procedures across the state — a basic tenet of due process. The law’s long-term prognosis, however, is uncertain. Violent crime in Chicago is through the roof, and opponents argue that ending cash bail poses a clear risk to public safety.

Tunisian president clamps down on independent judiciary

This past weekend, Tunisian President Kais Saied issued a decree dissolving the country’s High Judicial Council and replacing it with a handpicked “Temporary Supreme Judicial Council.” The move gives Saied the power to remove any judge for “failing to do his professional duties” — i.e., any reason Saied comes up with — and further prohibits the judiciary from going on strike in protest of the changes.

Middle East Eye explains:

Saied’s relations with the judiciary have been on edge since he consolidated power last summer.

In July 2021, Saied, who won the presidential election in 2019 as an independent candidate, suspended parliament, dismissed the prime minister and assumed vast executive powers. He has been ruling the country by decree for months, bypassing the powers granted to him in the constitution. His power grab measures were labelled as a coup by critics and opposition groups, a charge that Saied rejects.  

The CSM – a body meant to remain free from political interference – was one of the last institutions in the country to remain outside his control. The council was established in 2016, after independent members were elected to it; their role is to oversee the appointment of judges, promotions, and disciplinary proceedings.

But over the past few months they have come under increasing scrutiny from the president. 

On multiple occasions, Saied has accused the council of failing to resolve high-profile cases, including the political assassination of left-wing leaders in 2013.

Saied accused the council of appeasing political forces within the country, namely Islamist-leaning factions like Ennahda, the biggest party in the suspended parliament.

In December, the Tunisian Association of Judges raised the alarm, saying the president’s ongoing campaign against the judiciary was turning the public against them. At the same time, cases accusing judges of wrongdoing started to emerge. At least a dozen judges were placed under house arrest as a result. 

Among them is Bechir Akremi, former general prosecutor of the Tunis Court of First Instance, who was placed under house arrest days after Saied announced his power grab in July. 

Akremi was accused of deliberately concealing important files regarding the 2013 assassinations of Tunisian leftist leaders Chokri Belaid and Mohamed Brahmi. He was also accused of being heavily influenced by the Ennahda party. In January, Akremi’s case was dropped on appeal, over technicalities, much to the displeasure of Saied.

“Unfortunately, some judges in the courts have manipulated this case,” Saied said last week. “This is not the first trial where they have tried to hide the truth for years.”

Judge Akremi’s case has become emblematic of the clash of power between Saied and the judiciary. Opposition groups warned Saied was trying to use the high-profile cases of political assassination as a guise to expand his powers and crush opponents. 

The move in Tunisia is reminiscent of the recent attacks on judicial independence by authoritarian regimes in Poland and Romania. And the moves are drawing thousands to protest in favor of judicial independence. Many fear the decree will open the door to sacking judges for purely political reasons.

This does not look good. It will be worth watching carefully.

When senior status becomes political

Josh Blackman has some interesting comments on two federal appellate judges — one a Reagan appointee, the other a Clinton appointee —  who  rescinded their decisions to take senior status after learning, to their dissatisfaction, the identity of the nominees who would replace them. (Note the excellent reporting by David Lat.)

There is something deeply unseemly about this. Two rescissions do not necessarily represent a trend, but as Professor Blackman points out, conditioning senior status on the appointment of a chosen successor would effectively give judges a veto power over presidential nominations. This poses obvious problems for both the general balance of power in the federal government and our Constitutional fabric. 

The question is what to do about it. I see nothing in the governing statute that expressly forbids this type of gamesmanship. But there are certainly some opportunities for soft power responses. For one thing, the President need not kowtow to a judge’s demand for a specific nominee; if President Biden and his successors simply refuse to allow sitting judges to influence the nomination process, the likelihood of particularized conditional declarations of senior status will probably just dry up. 

It’s also possible for powers within the federal court system to respond. Neither the Chief Justice nor the Judicial Conference has coercive power to prevent judges from declaring conditional senior status. But they do have other forms of influence. It is hard to believe that a call from the Chief Justice, or a sternly worded communique from one’s peers about preserving the legitimacy and apolitical culture of the judiciary, wouldn’t make a difference to many on the bench.

To be sure, the federal court system needs judges to take senior status periodically. It is an important means of bringing in new blood and coping with voluminous dockets (since senior judges do not count against each district and circuit’s statutory allocation of active judges). But the internal culture also has to be preserved, and slowing some judges from taking senior status in order to maintain legitimacy is surely the right call.

 

Joe Biden buries the lead on his own judicial nominees

Joe Biden’s Very Bad Week continues with this unnecessarily tone-deaf press release about his latest round of federal judicial nominees. The nominees themselves are outstanding and highly qualified, and most have judicial experience at the state or federal level. Indeed, several of the nominees have been federal magistrate judges, which gives them special insight into the nuts and bolts of common procedures like arraignments (on the criminal side) and discovery disputes (on the civil side). 

But that evidently matters less to the President (and his advisors) than the nominees’ race and gender. The primary focus of the press release is on the number of Latina and Black nominees in this slate. Nothing is said up front about any of their accomplishments (except in very vague and broad language) or (in several cases) their relative youth, assuring the potential for a multi-decade career on the bench. It’s an insult to the nominees, at what should be a great moment in their legal careers, to reduce them to demographic avatars for the purpose of promoting a political agenda.

Let’s give the nominees some of the credit they deserve. Buried deep in the press release, we learn about this slate’s extraordinary diversity of legal experience: on the bench, as both prosecutors and public defenders, in the legal academy, and in private practice in areas ranging from family law to intellectual property. Some even have experience with social work and public education. That range of experience, and the different perspectives is must inculcate, will help the entire federal judicary — both in the courtroom and behind the scenes.

Congratulations to all the nominees.

Judges from around the world work to evacuate their female colleagues from Afghanistan

The safety of female judges in Afghanistan was precarious even before the botched American pullout left the Afghani people at the mercy of the Taliban and ISIS. Now the situation is far worse. Immeasurably, sickeningly worse.

One small point of light has been the efforts of private individuals and entities to protect Afghanis and, to the degree possible, get them and their families out of the country and on to safer ground. This Washington Post story highlights one such effort, by judges across the globe, to secure safe passage for their female Afghani colleagues. Their limited success in no way eradicates the catastrophe that is unfolding, but it does give one a certain degree of faith in the human spirit.

Ohio Democrats to Democratic judge: Don’t run for chief justice; you could win!

The perverse nature of choosing judges through partisan elections is currently on display in Ohio, where some Democrats see no benefit to a highly qualified member of their own party running for chief justice.

The state’s current chief justice, Maureen O’Connor, is retiring in 2022, and two associate justices of the state supreme court, Patrick DeWine and Jennifer Brunner, are considering running for the open seat. In Ohio, where judges must run in partisan primaries, their party affiliation is well-known. DeWine is a Republican and Brunner is a Democrat. The retiring O’Connor is also a Republican.

Justice Brunner may well make an excellent chief, and she is certainly saying all the right things about serving the people of Ohio. But to some Democratic bean-counters, a Brunner victory only has potential downside.

Here’s why: If Brunner becomes chief justice, her current seat in the state supreme court could be filled by Governor Mike DeWine.* DeWine, a Republican, would presumably appoint a Republican judge to that seat, meaning no net gain on the court for the Democrats. Moreover, if Brunner becomes chief justice, she will only be able to serve one full six-year term before hitting the mandatory retirement age, meaning that she would have to step down from the court after the 2028 election. If she remained in her current position, however, she could in theory stay on the court until 2032.

If you subscribe to the view that judges are simply legislators in robes, maintaining a certain number of (D)s and (R)s on the court is more important than each judge’s skill, integrity, experience, and temperament. But if you view judges as actual people with professional pride and commitments to excellence, treating them as fungible back-benchers is both inaccurate and insulting.

I have no view about who would make the best chief justice for Ohio. But I do know that it has little to do with a forced party affiliation, and much more to do with people skills, administrative capacity, ambition, effort, intelligence, and drive. I hope that Ohioans agree.

* Yes, Mike DeWine is related to Justice Brunner’s opponent, Patrick DeWine. They are father and son, respectively.

The disconnect between what Americans want in their judges and how they choose them

Professor Herbert Kritzer has a very interesting new article in Judicature, exploring the qualities Americans say they want in their state judges. It turns out that professional qualities like reputation for integrity and respect from leaders of the legal community are heavily desired, while political qualities like running for holding office or respect from party leaders is much less desired.

So then why do so many states still choose their judges through partisan, or at least politically influenced, elections? I offer a few thoughts at the IAALS Blog.

Five Biden appointees advance to confirmation votes

Five of President Biden’s judicial nominees advanced out of the Senate Judiciary Committee yesterday. Two court of appeals nominees, including D.C. Circuit nominee Ketanji Brown Jackson, passed on narrow majorities. Three dsitrict court nominees sailed through with large majorities.

Judge Jackson won the support of two Republican Senators, Lindsay Graham and John Cornyn, and passed to the full Senate with a final committee vote of 13-9. That someone as accomplished as Jackson received nine “no” votes is a clear sign of our political dysfunction. Senator Chuck Grassley, who voted against Jackson, explained that “unless a circuit court nominee can show me that he or she is affirmatively committed to the constitution as affirmatively understood, I don’t think that he or she should be confirmed.”

One point to Senator Grassley for honesty, but a three-point deduction for damaging partisanship. Yes, the D.C. Circuit has become the most ideological of the circuit courts, and yes, there is reason for the GOP to be concerned about the Democrats’ transparent effort to pack that court and then funnel all federal elections challenges through it. But elections have consequences, and no one should expect that a Biden nominee will be a committed originalist. Grassley’s bright-line rule for appellate nominees places him squarely in the camp of noted Third Branch emasculators Kamala Harris and Mazie Hirono.

Senate Democrats continue obsession over religious beliefs of federal judicial nominees

In recent years, Democrats on the Senate Judiciary Committee have generated a long list of wildly inappropriate questions and comments regarding the religious backgrounds of federal judicial candidates. Sen. Mazie Hirono (D-HI) has led the charge, backed up by Sen. Dianne Feinstein (D-CA) and others.

Now they’re back at it. Last week Senator Dick Durbin (D-IL) asked New Jersey district court nominee Zahid Quraishi, “What do you know about Sharia law?”

Quraishi, currently a U.S. Magistrate Judge with outstanding legal credentials, responded that he knew nothing about Sharia. (Quraishi was and raised in New Jersey, the son of Pakistani Muslim immigrants.)  And there is no reason to believe that he would, other than Senate Democrats’ obsession with stereotyping individual Americans based on their ethnic backgrounds.

It’s important to understand exactly how bad a question this was. First, it has nothing at all to do with Quraishi’s ability to perform the job for which he has been nominated. Whether Quaraishi has never heard of Sharia, or whether he is a renowned Sharia scholar, should make no difference in his ability to oversee trials and apply U.S. law as a federal district judge. Second, the question itself put Quraishi in an impossible situation: whatever answer he gave would be bound to erode support from some segment of the population. (And indeed, some Muslim groups are apparently now rethinking their support of his nomination simply because of his honest answer.)

This was an entirely unforced error by Durbin, who half-apologized for the question in advance but still showed the utter lack of intelligence to ask it.

As best I can tell, Zahid Quraishi is a classic American success story. His nomination should rise or fall on his qualifications, not the political or cultural identity that others wish upon him.