Tag: law and politics

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.

 

Senate Democrats to boycott Barrett confirmation vote, replacing themselves with cardboard cutouts

Please tell me this is a joke:

Democrats on the Senate Judiciary Committee plan to boycott Thursday’s committee vote on Amy Coney Barrett’s Supreme Court nomination as a protest against Republican efforts to rush her through before the election.

The plan hasn’t been finalized yet, according to a Democratic aide, but Democrats are preparing to fill their empty seats with poster-sized photos of people who would be hurt by Barrett potentially casting a deciding vote against the Affordable Care Act. These would be the same pictures of people Democrats had on display during Barrett’s confirmation hearing last week.

Sadly, it appears to be real. Rather than upholding their Constitutional responsibility to vote a Supreme Court nominee, Senate Democrats are planning to replace themselves with cardboard cutouts for cheap political gain. In doing so, they will:

    • Send the message to undecided voters, just days before a major election, that they are not serious about their fundamental responsibilities;
    • Sow the ground for Republicans to pull a similar stunt (perhaps with cardboard cutouts of aborted fetuses) the next time the Democrats have a Senate majority and a Supreme Court nominee; and
    • Provide some free advertising for South Park and Bud Light.

My goodness. What have we become?

On Biden, the Court, and what voters “deserve to know”

Joe Biden’s refusal last week to state whether he supports the Court-packing scheme advanced by several prominent members of his own party, and his insistence that voters “don’t deserve” to know where he stands on the issue, has drawn understandable scrutiny. Several commentators have attempted to dissect both the political cynicism behind the proposal and Biden’s strategy for declining to comment on it. (In particular, I recommend the first dozen minutes of this Commentary podcast as well as this op-ed by Gerard Baker in the Wall Street Journal).

I want to focus here on what the kerfuffle means for Biden post-election, since it seems very likely that he will win the Presidency next month. As Baker points out (behind a paywall, unfortunately), “even Mr. Biden—something of a procedural conservative—must be aware how grotesque the idea [of court packing] is. The prospect of a high court turned into an adjunct of the executive and legislative branches, staffed by black-gowned, forelock-tugging accessories to untrammeled political excess, must surely give him pause.”

Baker is right. Biden is too steeped in the Washington politics of the last fifty years to not be a traditionalist on this issue. Indeed, he has had three decades to reveal himself as a disruptor of court structure, both as a high-ranking member of the Senate Judiciary Committee, and as Vice-President. To be sure, he has spearheaded legislation that has changed court operations, and he bears heavy responsibility for setting the tone of current Supreme Court confirmations with his behavior during the confirmation hearings of Robert Bork and Clarence Thomas. But he has nevertheless conducted himself according to the standards of twentieth-century American politics: play hard, and don’t kick the game board over just because you think you’re losing.

The extremists in his party disagree, and are embracing the vision of converting the Court into an arm of the progressive movement by brute political force. This  development should concern all who believe in preserving the delicate balance between court independence and interdependence, and indeed the proposal is playing very poorly with most voters. (Perhaps in a nod to this reality, Biden himself finally stated that he was “not a fan” of court packing in a radio interview on Monday.)

Progressive extremists will certainly put pressure on a Biden Administration to force the court-packing policy into existence, especially if Democrats win the Senate in November.  And of course Biden, like any President, would feel some compulsion to support the legislative agenda from a same-party Congress. But some of the more senior legislative members of his own party recognize the inherent dangers (political and structural) of court-packing, and would likely try to to slow down any movement, especially in the Senate. Moreover, there is no significant reason to believe that his White House would simply be a vessel for extreme progressives. Biden is a wily veteran in Washington. No matter how he may project on the camoaign trail, he surely knows how to wield the levers of power behind closed doors.

Bottom line: A Biden Administration will not support court packing and will try to deemphasize it. Look for Biden to lean on Nancy Pelosi, and others who have been burned by aligning themselves with their intraparty radicals, for assistance in tamping down the extremism. Biden’s position may prove to be a last stand, depending on the growth of the radical progressive wing of the Democratic Party, and court-packing may remain as an issue in 2024. But a lot will happen between now and then, and the short-term likelihood of this terrible policy proposal coming to fruition is probably slimmer than it appears.

Jurisdiction stripping is back, this time from the left

Here’s something I wrote about federal judicial accountability:

Many commentators have praised Article III’s guarantees of life tenure and freedom from salary cuts as essential tools to preserve judicial independence. Far less frequently have the commentators explored the impact of these guarantees on judicial accountability. Rather, until relatively recently, the prevalent assumption (dating back to the original Federalist debates) has been that “the perceived need for judicial accountability to counterbalance life tenure, nonreducible salaries, and judicial review, began and ended with the impeachment mechanism.” A reexamination of that assumption, however, has been sparked in the early twenty-first century both by academic commentators and some in Congress. The last ten years alone have produced a host of creative— sometimes outrageous—alternatives to promote federal judicial accountability through (in most cases) a combination of executive and legislative power and populist sentiment. Some such proposals are effectively substance-neutral, most notably replacing life tenure with fixed, lengthy judicial terms. Other proposals, however, are aimed at the substance of judicial decision-making, among them several schemes to strip federal courts of jurisdiction to hear certain types of cases. Prominent politicians have even occasionally threatened impeachment—or worse—for federal judges as a punishment for decisions they did not find appropriate. Contributing to the tenor of politically “accountable” judges is a federal judicial appointment process that has become increasingly partisan in the last two decades.

This paragraph was part of the introduction to an article I co-wrote twelve years ago, and yet it feels surprisingly fresh. The difference is that while many of the efforts to subject the court to populism and political sentiment a decade ago came from conservatives, today those same views are being embraced by the liberal establishment. Countless bad ideas — Court packing, term limits, and the like — continue to emerge, with the most recent being the rediscovery of jurisdiction-stripping. Bloomberg Businessweek explains:

Some liberal proponents believe jurisdiction stripping could help Democrats shield bold future legislation from damaging court battles. In theory a Democratic Congress could pass a health-care plan or a Green New Deal with a provision stipulating that the legislation lies outside the bounds of Supreme Court review.

Under variations of the jurisdiction-stripping proposal, Democratic lawmakers could also limit the ability of lower courts to review legislation or could confine legal challenges to geographic regions where courts are generally sympathetic.

Let’s be clear about what’s happening. Today’s politicians, unable or unwilling to do the hard work of compromise and dealmaking, are leaving the courts to make sense of hastily written and sloppy laws. When lawmakers don’t like the results, they propose extreme “fixes” which would deny the courts the ability to do even their core adjudicative work. This is wrong, whether it comes from the right or the left, and is symptomatic of how awful our political class — and their academic enablers — have become.

Judicial Watch head nominated for D.C. judicial commission

Shortly before entering the hospital for treatment for COVID-19 last week, President Trump nominated Tom Fitton, the head of Judicial Watch, to join the D.C. Commission on Judicial Disabilities and Tenure. The Commission oversees the District of Columbia judiciary (essentially D.C.’s equivalent of state judges) and has the power to remove judges for misconduct, as well as physical or mental incapacitation.

Fitton has been outspoken in opposition to the Mueller probe and critical of the Obama Administration, and plainly has ingratiated himself with the President. While Trump has the authority to nominate anyone he likes to the commission, the open partisanship of this choice will do little to build public confidence in the fairness or impartiality of the Commission.