EU sues Poland over 2019 judicial law

Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.

Deutsche Welle explains:

At issue is the Polish law affecting the judiciary that came into force in February last year.

It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.

The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.

One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.

The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”

Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.

Another chapter in a distressing saga.

State courts come under legislative assault

State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.

The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:

In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.

In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”

Are Supreme Court amicus briefs posing a transparency problem?

That’s the question raised in this excellent Wall Street Journal piece by Jess Bravin. He reports that the number of amicus briefs filed with the Supreme Court has risen dramatically in recent years, with many of the briefs coming from opaque interest groups. Current Supreme Court rules only require that an amicus brief disclose whether a party or its lawyer funded the brief, or whether anyone else outside the named party contributed to its preparation. But this leaves plenty of room for little-known groups to file briefs, which may carry outsized influence with the Court.

Senator Sheldon Whitehouse (D-RI) is pushing for greater transparency in amicus briefs. I have criticized Senator Whitehouse routinely on this blog for his often perverse behaviors toward the federal courts, but on this issue we agree: greater transparency would benefit everyone.

Still, the courts would be better off modifying the policy themselves, rather than sitting back and allowing Whitehouse and his compatriots to force a legislative solution.

Nevada Supreme Court seeks substantial pay hikes for state judges

The proposed legislation would increase all judicial salaries by $30,000/year, with additional automatic increases beginning in 2027. Interestingly, the bill came from the supreme court itself, as Nevada permits government entities other than the legislature to propose legislation.

West Virginia will again consider adding an intermediate court of appeals

West Virginia is one of the few states that has no intermediate appellate court, meaning that its state supreme court faces a more congested, mandatory docket. Lawmakers have periodically proposed adding a new court, but without success.

The effort has begun again: the West Virginia Appellate Reorganization Act was introduced in the state’s senate judiciary committee this week.

Intermediate appellate courts cost money and demand infrastructure, but they also make a lot of sense from the standpoint of the administration of justice. Some lawmakers are optimistic that this will be the year.

More on the Pennsylvania plan to create partisan judicial elections by district

I was pleased to weigh in this week on the proposed Pennsylvania legislation that would shift partisan elections for its state supreme court from a statewide ballot to a regional one. (More on the proposal here and here.) As the Spotlight PA article suggests, my concern is not with creating geographic districts, but rather with the potentially explosive mix of districts and partisan races. That combination seems to me to especially invite special interest and dark money, similar to the notorious 2004 supreme court election in Illinois.

Interestingly enough, South Carolina is also considering a move to expand and diversity the geographic perspective of its supreme court, which is chosen entirely by the legislature. We’ll continue to follow both proposals here.

Making sense of the new PACER bill

There is plenty of room for constructive compromise, but it requires everyone to acknowledge that “free” PACER is not actually free.

Last week, the House of Representatives passed the Open Courts Act of 2020, H.R. 8235, by a voice vote. The bill would radically reform access to federal court records by requiring (among other things) that the courts’ PACER system be modernized and its contents made free to the public. The bill drew praise from open courts advocates, and furious pushback from the Judicial Conference and the Administrative Office of the U.S. Courts (AO). Indeed, the Judicial Conference’s reaction was probably the most vigorous response I have seen from the courts in many years.

It is a rare piece of legislation these days that can simultaneously garner bipartisan support and solicit institutional panic from the judicial branch. So it’s worth examining closely. What we find is an opportunity for the court system to improve its transparency and its own performance, albeit not on the schedule or in the manner it would prefer. Continue reading “Making sense of the new PACER bill”

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.

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.

 

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.