Cook County attorney steals a page from Trump’s playbook

Back in November, Illinois attorney Frank DiFranco ran for a local judicial seat in Cook County. He lost the election to incumbent Patricia Fallon. But that isn’t stopping DiFranco from trying to change the election outcome in court. The Chicago Tribune reports:

The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent.

“The clerk’s motivation for including votes received after Nov. 17 to the vote tally in the 12th Judicial Subcircuit was to help the Democratic candidate win,” DiFranco’s lawsuit alleges.

In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

Fallon in November attributed her win to the large number of mail-in votes, which were still being counted when DiFranco appeared to be leading in the race.

It’s perfectly fine for judicial candidates, like any candidate, to vigorously monitor election results, including asking for recounts in close races. But when votes have been certified and there is little real evidence of wrongdoing (as opposed to naked allegations), relitigating elections in court can only undermine the legitimacy of the judiciary and the democratic process.

Texas commission recommends move to nonpartisan judicial elections

The fifteen-member Texas Commission on Judicial Selection has issued a formal report recommending that the state move away from partisan judicial elections in favor of nonpartisan elections. A bar majority of the commission members — eight — supported the change. But since most dissenters are state legislators, it seems unlikely that the commission’s recommendations will be followed anytime soon.

The Texas Tribune has an excellent summary and analysis here. A snippet:

“I do not believe the citizens, my constituents of the state of Texas, want this right taken away from them, and I’m not gonna be in a position or be the one who does that,” state Sen. Joan Huffman, R-Houston, said at the committee’s final meeting in December. Huffman, who served as a trial judge in Houston, and said the experience of campaigning for the bench had been valuable.

The counterargument to that came most persuasively from former judges, who have been pointing out for years that while Texans say they cherish their ability to elect judges, they typically have little idea who they’re choosing between.

In Houston, for example, there are dozens of judges on the ballot, lists long enough that even top local attorneys struggle to familiarize themselves with every candidate.

In the absence of better information, voters often turn to the demographic clues they can glean from the ballot itself. In this year’s Democratic judicial primaries, for example, female candidates got more votes than male candidates in every gender-split race, about 30. And in Republican primaries, judicial candidates with Hispanic-sounding surnames have often fared poorly, owing, experts say, to a largely white electorate.

“Judges can be elected even though no one knows who they are,” pointed out Wallace Jefferson, who was the first Black chief justice of the Texas Supreme Court. Instead of vetting the qualifications of the judicial hopefuls they are choosing between, he said, voters often choose based on party affiliation, “or they vote based on the sound of your name.”

 

North Carolina election finally comes to a close as Newby sworn in as Chief Justice

The hotly contested election for Chief Justice of North Carolina, which went through several recounts and concluded with challenger Paul Newby winning by 401 votes, is now formally in the books. Newby was sworn in as the state’s 30th chief justice on Friday.

North Carolina Chief Justice election still undecided

More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).

But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.

After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.

Salt Lake City federal courthouse to be named for Orrin Hatch

Congress can still agree on a few things, it seems. A bill to rename the Salt Lake City, Utah federal courthouse after retired Senator Orrin Hatch passed both houses of Congress unanimously this week. The bill has been sent to the President for signature.

Senator Hatch served Utah for 42 years in the Senate, and was a leading voice on the Senate Judiciary Committee. Much of that time overlapped with another old Judicary Committee hand, Joe Biden. It is a fitting tribute to name the Salt Lake City courthouse in his honor.

Durbin to be top Democrat on Senate Judiciary Committee

In a secret ballot vote, Senate Democrats have approved a plan to let Senator Dick Durbin of Illinois lead the party on the Senate Judiciary Committee for the next Congress. The move was made possible after Senator Dianne Feinstein of California chose not to remain in that leadership position.

It’s not clear to me whether Durbin will be much of a change from Feinstein, whose recent tenure was marked both by moments of embarassing partisanship and sensible statesmanship. But Durbin cannot be worse (I hope) than his primary rival for the position, Senator Sheldon Whitehouse of Rhode Island. A valuable friend to the federal courts not too long ago, Whitehouse approached the lunatic fringe as of late, threatening the Supreme Court directly and ranting about dark money funding of judicial nominees. Let’s hope Durbin (or someone) can exert control and insist that Senators live up the standard of decorum and reasoned debate that the American people rightly expect of them.

Posturing and gamesmanship in Israeli judicial appointments

In October, I pointed out the childish posturing of Senate Democrats, who boycotted the Judiciary Committee’s confirmation vote for Justice Amy Coney Barrett and sent cardboard cutouts in their place. The stunt made a mockery of one of the Senate’s core responsibilities, and I suspect that it played at least a small role in the Democrats’ poor showing in November’s legislative races.

Unfortunately, such spectacles are not limited to the United States. Earlier this week, three right-leaning Israeli lawmakers boycotted the meeting of that country’s Judicial Appointments Committee, evidently believing that their absence would prevent a quorum and preclude the Committee from appointing two Israeli Arabs to judicial positions.

They were wrong. The law allows the committee to meet with any number of members present, as long as there are at least seven members on the committee roster. Because the boycotting politicians never resigned from the committee, the committee had the requisite number of members to move forward even in their absence. Ultimately, the committee appointed 61 judges, include one of the Arab candidates.

If there are good reasons to oppose a judicial nominee, by all means politicians should vote to oppose. But preventing the wheels of government from operating purely for partisan gain harms the judiciary and insults the public.

Rwanda ends recruitment exams for judges

The Rwandan government has changed its system for recuiting judges, ending the practice of requiring judicial candidates to pass specific recuitment exams. Instead, judges will now be political appointees. Under the lew legislation:

judges shall instead be appointed by the High Council of the Judiciary upon recommendation by the Bureau of the Judiciary.

They will be appointed based on their integrity, expertise and excellence they are known of in their career, and in their normal private life, other than gauging their capacity on their level of passing recruitment tests.

I don’t pretend to know enough about Rwanda’s political or judicial system to opine on the motivations for the change. But if a state that traditionally has employed a career judiciary –with testing and training up of young judges up front — suddenly moves to a system of politically appointing judges as a capstone to their legal careers, it’s certainly noteworthy.

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.