For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.

On exasperated judges

This short opinion by United States District Judge Vanessa Gilmore, bemoaning the parties’ “whiny letters” and chastising counsel to “Please stop trying to become my least favorite lawyers” has been making the rounds over the past couple of weeks. It is noteworthy because judges do not normally write like this, either in style or substance. They may think it–judges are human, after all–but to put it in an opinion for the world to see adds a dramatic, and intentional, touch.

This is not the first judicial opinion to call out the attorneys for conduct or argument that the judge finds annoying. Used judiciously (no pun intended), an occasional sprinkling of exasperation in an opinion can be very effective. It humanizes the judge–who among us hasn’t experienced the frustration of someone wasting our time?–and it underscores the judge’s role as guardian of the court system and the legal process. As the most visible members of the court system, judges must often police the system’s other users and remind them of professional and community standards. A carefully considered dose of exasperation can do the trick.

Here is an example of what I mean: In this 2017 opinion rejecting a proffered plea deal between the federal government and a corporate criminal defendant, U.S. District Judge William Young began:

Let’s see if I’ve got this straight.

Period. End of paragraph. Not the standard way to begin an opinion, to be sure. But that line (and a few others similar in tone) perfectly captured the court’s incredulity at the parties’ proposal. It also captured the court’s belief that allowing the specific form of corporate plea deal proposed by the parties would be detrimental to the public. Despite the occasional bits of snark, the opinion plainly speaks not just for its author but for the community that the law is intended to protect.

But it is also easy to go too far. As a law student, I read with amazement the colorful beatdowns of seemingly incompetent and evasive lawyers by U.S. District Judge Samuel Kent. No infraction or argument was too small to avoid Judge Kent’s notice. He berated counsel for drafting pleadings as if written in crayon, and mocked others for seeking to transfer the case out of Texas. His opinions were sarcastic and funny, but they were also cruel, and unnecessarily so. Rather than raising the bar for legal practitioners, they ridiculed the legal profession itself. (Judge Kent’s final coup de grace was his impeachment and imprisonment in 2009 for sexually abusing two female employees.)

Expressions of judicial exasperation can be uplifting, humanizing, or debasing. At their best, they identify the judge as a human being possessing better-than-average wisdom and professionalism, if not infinite patience. At their worst, they reveal the judge to be all too human and unable to conceal contempt.

It is difficult to always be the adult in the room, especially in this age where many of our most prominent citizens are prone to public tantrums. But always being the adult is the essence of the judicial role. Judge Gilmore’s order may elicit a certain amount of personal sympathy among her readers, but it does little to advance respect for the judiciary as a whole.

Native tribes in Alaska push for tribal courts

Several tribes native to Alaska are considering a push for their own tribal courts. One such court, for the Tlingit and Haida tribes, has been operating in Juneau since 2007.

The AP reports:

Marina Rose Anderson, the vice president and administrative assistant for the Organized Village of Kasaan, was among the officials who attended the conference. Issues that happen close to home should be handled close to home, Anderson said, rather than having people outside the community make legal decisions.

Her goal is to make the tribe as independent as possible, Anderson said.

Hoonah Indian Association Tribal Administrator Robert Starbard had similar thoughts.

“I think for us, the primary importance of a tribal court is that it gives additional legitimacy and eligibility to our sovereignty,” he said. “You cannot be sovereign if you cannot exercise control over what happens with your ordinances and laws. Tribal court is a mechanism that allows us to do that.”

Indeed.

Friedman on the Supreme Court’s cert denial in Gee v. Planned Parenthood

Earlier this week, the Supreme Court denied certiorari in Gee v. Planned Parenthood, a case involving the ability of Medicare recipients to challenge a Louisiana law regulating payments to providers of certain services. While not specifically about abortion, the case certainly was determined in the shadow of the national abortion debate.

At least four Justices are needed for the Supreme Court to take up a case, but here only three of nine wanted to take it: Thomas, Alito, and Gorsuch. In an uncommon turn, Justice Thomas penned a dissent from the denial of certiorari, critiquing his colleagues for shirking their responsibility to decide cases that are or may be politically controversial.

Many people have weighed in on the Court’s decision and Justice Thomas’s dissent, but my colleague Lawrence Friedman has a particularly thoughtful and sensible take. Read the whole thing.

Kavanaugh accuser admits accusation was false

Judy Munro-Leighton, who alleged in an October 3 email to the Senate Judiciary Committee that she had been raped by Brett Kavanaugh, has now admitted that she fabricated the story as a “tactic” to stop his nomination to the U.S. Supreme Court.

In her email, Munro-Leighton identified herself as the “Jane Doe” who had sent an anonymous letter to Senator Kamala Harris in September, alleging that Kavanaugh and a friend had raped her “several times each” in a car. No time frame or additional details were provided. After receiving the email, Judiciary Committee staffers tried in vain to reach Munro-Leighton for nearly a month. When they finally were able to connect with her in early November, she admitted that she had not written the original “Jane Doe” letter and that her email was a way “to grab attention.”

This is appalling. False accusations undermine the very fabric of the justice system, and false accusations against a judge threaten the legitimacy of the courts. They also represent an assault on real accusations, hurting the ability of real victims to tell their stories and seek some measure of justice.

Senator Charles Grassley has referred Munro-Leighton to the FBI for further investigation for the federal violations of making materially false statements and obstruction.

Good.

Former Israeli Supreme Court President defends private meetings with Prime Minister

Miriam Naor, the former President of Israel’s Supreme Court, recently gave a rare public interview in which she defended her private meetings with Prime Minister Benjamin Netanyahu while serving on the Court. Naor maintained that she was appropriately discussing major legislation that would effect judicial branch operations. Critics argue that such meetings could compromise the integrity of a court that could eventually hear criminal charges against the Prime Minister.

This is a delicate thing. As I have noted regularly on this blog, most courts worldwide depend significantly on the other branches of their respective governments for resources and enabling legislation. It is both pragmatic and smart for the administrative head of a court system to share judicial concerns and perspectives with lawmakers. But closed-door meetings invite the perception of an improper, closer-then-arms-length relationship between the branches and their representatives.

A discouraging survey on lack of confidence in the Kenyan courts

A new study reveals that nearly half of Kenyans seek to resolve their legal disputes outside of court, either through informal means or by not pursuing a claim at all. The reasons are discouraging but unsurprising:

The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.

The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.

The study also found that 2 out of 3 Kenyans believe their court system generally protects the interests of the rich and powerful above all others, and only 1 in 3 felt that they can rely on the courts for fair justice.

Access to justice was hindered in other ways as well. Nearly 1 in 5 Kenyans said that they have no idea how to even initiate a legal claim. And those can file a claim may have to wait an eternity for resolution, since 1 in every 6 cases currently pending in the Kenyan courts is more than ten years old.

These problems are not unique to Kenya, of course. Every court system faces the considerable challenge of providing equal justice in a society that is inherently unequal. But the survey nevertheless brings those challenges into stark relief once more.