Tag: law and politics

Populism, politics, and the Polish courts

Several months’ worth of rumblings over the fate of the Polish judiciary came to a head this week when the country’s legislature debated a controversial judicial reform bill. Like the judicial crisis in Ireland that unfolded earlier this summer, the Polish controversy is worth unpacking and monitoring closely.

The reform bill discussed this week was shepherded through the legislature by the Law and Justice (PiS) Party, a populist, conservative party that has been in power since 2015. The bill would give legislators and the Justice Minister the power to appoint new judges without input from the judiciary. It would also create a new code of ethics for the country’s judges. A second bill would require all Supreme Court Justices to resign (unless permitted to stay by the Justice Minister), and new Justices appointed in their stead. The PiS leader, Jaroslaw Kaczynski, has justified the moves by saying that the country’s judiciary had not sufficiently reformed from its communist past, and that “radical changes” were needed.

Opposition leaders and other European observers have painted the bill as a power grab that would compromise judicial independence and threaten the rule of law, and have even asked for international oversight of the vote on the bill. On Sunday, thousands of protesters jammed the streets of Warsaw to protest the legislation.

What should observers make of this?

Continue reading “Populism, politics, and the Polish courts”

Alexis de Tocqueville on American courts

“An American judge … cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves.”

“I am aware of a hidden tendency in the United States leading the people to diminish judicial power; under most of the state constitutions the government can, at the request of both houses, remove a judge from office. Under some constitutions the judges are elected and subject to frequent reelection. I venture to predict that sooner or later these innovations will have dire results and that one day it will be seen that by diminishing the magistrates’ independence, not judicial power only but the democratic republic itself has been attacked.”

“I do not know whether a jury is good for litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.”

— Selected from Democracy in America (13th ed. 1850)

Some thoughts on the effort to recall Judge Aaron Persky

There is currently an effort in Santa Clara, California, to recall Aaron Persky, the Superior Court judge who gave an extraordinarily light sentence to former Stanford swimmer Brock Turner last summer after Turner was found guilty of sexual assault.  Persky sentenced Turner to six months in county jail, far short of the recommendations of prosecutors, after Turner was found to have sexually assaulted a drunk and unconscious woman behind a dumpster.

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.

Continue reading “Some thoughts on the effort to recall Judge Aaron Persky”

Unpacking the latest in the Maire Whelan controversy: proposed judicial appointments bill panned, government at risk

The controversial appointment of Maire Whelan to Ireland’s Court of Appeal continues to ruffle the country’s new government.  This week, Transport Minister Shane Ross proposed a bill to create a new Judicial Appointments Commission.  The new commission would have a majority of non-lawyer members, and would be chaired by a non-lawyer.  The commission would select final nominees, who would then be chosen by the government.

The bill immediately came under fire from Fianna Fail, the political party whose support is necessary to uphold the government’s confidence and supply agreement. The proposal was also publicly criticized by prominent members of the judiciary.

Continue reading “Unpacking the latest in the Maire Whelan controversy: proposed judicial appointments bill panned, government at risk”

Irish parliamentary debate over Maire Whelan appointment “extremely heated”

This blog has been closely following the appointment of former Irish Attorney General Maire Whelan to that country’s Court of Appeal last week, which has engendered enough controversy to threaten to bring down the new government.  Whelan accepted her appointment on Monday, but that hardly ended the matter.  On Wednesday night, the Dail (Ireland’s parliament) held a lengthy debate over the propriety of the appointment.  According to one story:

A two-hour debate was held in the Dáil to discuss the appointment last night.

It became extremely heated.

New Minister for Justice Charlie Flanagan said a new bill was part of the government’s aim of “entirely reforming the judicial appointment system”.

Jim O’Callaghan dismissed the claim that Cabinet confidentiality prevented the answering of essential questions on the matter.

Sinn Féin’s Mary Lou McDonald, meanwhile, said that Micheál Martin – who wasn’t present for the debate – had serious questions to answer based on a telephone call he had with the Taoiseach on the matter last Sunday.

She questioned whether Martin attempted to use his influence on the government to prevent Whelan being appointed.

Labour leader Brendan Howlin took aim at the Independent Alliance who, he claimed, “clapped through an appointment that they now oppose”.

Clare Daly said the appointment was legal, but “political”.

Mattie McGrath said “new politics, my foot”.

Sinn Féin’s Jonathan O’Brien got into a war of words with Minister Flanagan, after asking how many others applied for the role.

Today, Taoiseach Leo Varadkar was asked if the situation had affected Fine Gael and Fianna Fáil’s confidence and supply arrangement. “Obviously the week that has gone by I don’t think has been helpful for either party,” he said. “But we have a written agreement.”

We’ll continue to watch how this plays out.

Update on the Maire Whelan controversy in Ireland

The controversial appointment of former Attorney General Maire Whelan to Ireland’s Court of Appeal last week continues to draw headlines. Minority parties in the government have alleged several improprieties with the appointment, including that Whelan never formally applied for the post through the Judicial Appointment Advisory Board, and that she remained in the Cabinet meeting while her appointment was being debated.

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Former Alabama Chief Justice Sue Bell Cobb throws her hat into Governor’s race

Sue Bell Cobb, who served as Chief Justice of Alabama from 2007 to 2011, announced last week that she is running for Governor of the state.  She becomes the second Alabama Chief Justice in as many months to seek an elected position in another branch.

Cobb has considerable campaign experience from her days on the judiciary.  In 2006, she was involved in the most expensive judicial race in the nation, spending more than $2.6 million to win the Chief Justiceship.  Since leaving the court, she has spoken out against money in judicial politics, although not against judicial elections themselves.

Two additional observations.  First, Cobb appears to be a deeply religious woman, and her announcement and website are rife with religious themes.  Those same themes came through during her 2006 judicial campaign.

Second, Cobb had this to say about her retirement from the court system in 2011: “My chief obligation as the top administrator of the court system was to secure adequate funding from the legislature for the judiciary. I became very concerned that, because of the partisanship within the legislature, I would be unable to succeed in that most important responsibility.”

It will be interesting to see if, and how, these themes manifest themselves in the upcoming gubernatorial race.

Major controversy brews over judicial appointment in Ireland

A significant political controversy appears to be brewing in Ireland after the outgoing Taoiseach (prime minister), appointed Attorney General Maire Whelan to a seat on the country’s second highest court. Minority parties in the government, including Fianna Fail and Sinn Fein, have charged that the appointment violated established procedures. It also appears that Whelan never sought the post.

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Three Australian ministers may face contempt charges for criticizing judges

In Australia, the Supreme Court of Victoria has order three government ministers and two journalists to appear before it to explain why they should not face contempt charges for eroding trust in the legal system.  One minister reportedly said that “Labor’s continued appointment of hard-left activist judges has come back to bite Victorians.”  Another allegedly warned that the courts “should not be places for ideological experiments in the face of global and local threats from Islamic extremism.”

The linked article offers as excellent explanation of the two forms of contempt available in Australia.  Although these proceedings are apparently quite rare, they are still shocking to American sensibilities. First Amendment protections and respect for vigorous political speech would make prosecution of this sort unthinkable.

I would welcome any readers more knowledegable than I in Australian jurisprudence (not a high bar) to offer thoughts in the comments.

Judicial aspirants brown nose at Brooklyn Democratic fundraiser

Those who are truly concerned about money and politics* might take notice of this past weekend’s fundraiser for Jacob Gold, “the dean of Democratic District Leaders,” in Brooklyn. The fundraiser brought out “a small army of attorneys,” all of whom hoped to wow the party bosses and win one of a handful endorsements for the bench in the coming election.

I have previously noted the rather nauseating control that party bosses maintain over the selection of New York’s trial judges. Events like this offer little solace for the prospect of an impartial and independent judiciary. New Yorkers deserve much better.

* As opposed to those who simply and mindlessly rant about Citizens United.