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 Conference to push for legislation and funding to assure safety of federal judges

In the wake of the horrific shooting of Judge Esther Salas’s son and husband at her New Jersey home last month, the Judicial Conference of the United States has resolved to seek aggressive legislation and funding to better protect federal judges and their families. The Judicial Conference’s press release, which lays out its proposals, is here.

Let’s hope that Congress acts quickly to provide the necessary resources.

A renewed effort to create regional judicial elections in Pennsylvania

Pennsylvania state senator Ryan Aument reintroduced legislation this week to elect the state’s appellate judges by region. The goal is to assure fairness of geographic representation within the court system:

Aument noted that a cursory review of Pennsylvania’s Superior Court and Commonwealth Court judge compliment in 2018 when this proposal was first developed shows that more than half of all the members of those courts were from only two of Pennsylvania’s 67 counties, which only represent 21% of the state’s population.

He also pointed out that five of the seven Pennsylvania Supreme Court Justices, or over two-thirds of the justices, were from Allegheny or Philadelphia counties, leaving 79% of the state’s population unrepresented on Pennsylvania’s highest court.

I understand the goal of the bill, but it misses the larger point that Pennsylvania’s judicial election structure itself is highly flawed. As I noted earlier this year, “geographic representation could be achieved much more fairly and efficiently through a commission-based appointment system than through the messy (and litigation-begging) process of drawing election districts in the legislature.”

Federal courts ask Congress for coronavirus assistance

The federal judiciary has asked Congress for $36.6 million in supplemental funding to work through the coronavirus pandemic. The money would be used for cleaning courthouses, enhanced medical screening, information technology updates, and other IT infrastructure, among other things. The judiciary is also seeking new legislation to toll certain bankruptcy deadlines, add new temporary judgeships, and protect litigants and detainees from unnecessary coronavirus exposure.

The letter setting out the requests is here.

Judicial Conference authorizes federal courts to hold certain criminal proceedings electronically

Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.

The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”

This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.

New York judge calls for reform to state bail law

Earlier this year, New York State’s poorly thought-out bail reform law formally went into effect. (New York City courts began implementing it even earlier under the directive of Mayor Bill de Blasio.) The law requires state judges to release criminal defendants without bail except in the most egregious cases. While the law was intended to address perverse effects of existing bail laws on minority communities, it backfired spectacularly from the very start. In December, a woman accused of an anti-Semitic attack on the streets of New York City was released even after admitting her deed; she was involved in another criminal incident less than 24 hours later (and eventually was charged with federal crimes for which bail is required). She was not alone: many stories have identified criminal defendants who were released without bail despite being charged with violent crimes; some of the defendants have even expressed their own surprise at being released. Both de Blasio and New York Governor Andrew Cuomo, who initially championed the legislation, have publicly announced that they have had second thoughts.

The law is deeply problematic because it denies state judges a role fundamental to their jobs: the discretion to determine the conditions under which a criminal defendant should be released. Now some judges are speaking out against it themselves. At a recent forum, Bronx Criminal Court Judge George Grasso called for immediate efforts to change the law:

Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.

“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”

“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”

This is a noteworthy development. Judges typically do not speak publicly on the state of the law, even laws that directly affect the administration of courts and the justice system. Offering a personal opinion on the validity or effectiveness of a law opens a judge to charges of bias or partiality. So it takes a real crisis for judges to feel the need to speak out so publicly.

And Judge Grasso is right. Whatever its original intent, the new law ties the hands of the courts, makes New Yorkers less safe, and reduces public confidence in the criminal justice system.

Two states aim to reorganize court structure to promote efficiency and fairness

Separate stories this week show how two state governments are working to reconfigure their court systems in response to growing dockets and concerns about cost, efficiency, and fairness.

In Colorado, a bill to create a new judicial district passed through the House Judiciary Committee. The proposal would split rapidly growing Arapahoe County off from the rest of the 18th Judicial District in order to better (and more fairly) allocate resources among the four counties that currently comprise the district. Arapahoe County has seen a recent spike in criminal prosecutions and especially murder trials (a depressing fact for this former Coloradan), and the growing criminal docket led many to believe that placing it in its own new judicial district would be BBC a better use of resources. The bill has broad support. If passed, it would go into effect in 2025.

In New York, the court system itself is taking the initiative to improve its efficiency and administration. This article by Chief Administrative Judge Lawrence Marks points out that consolidating the state’s Byzantine court system (which currently has 11 different trial courts) would save litigants and the public hundreds of millions of dollars every year. As in Colorado, the proposal has strong support but would need legislative sign off.

These are nice examples of interbranch cooperation for the benefit of local residents and taxpayers. More like this, please.

In a widely criticized move, New York Governor prevents Trump-appointed judges from performing weddings

The New York Post reports on the move here. This is really sad and petty, designed only to make an ill-advised political point.

In New York, all state judges are allowed to perform weddings, as well as all legislators and the governor himself. A new law would have extended that power to all federal judges in the state, and passed overwhelmingly in the state legislature. Read the whole thing to see the criticism of the move coming from all sides.