No vacancies, but a docket crisis nonetheless

I have been writing recently about the vacancy crisis in the U.S. District Court for the District of New Jersey, which has only 11 active judges despite a statutory entitlement to 17 (and a Judicial Conference recommendation for 20). But docket challenges can occur even where a court has its full complement of judges. This story highlights the docket overload in the Middle District of Louisiana, which has all three of its authorized judges in place but which still struggles to manage its docket, one of the heaviest in the nation.

Happily, it appears that Senator John Kennedy is continuing to push for more resources for the district. But in our fractured age, when every judicial appointment has taken on a (misplaced) political tint, it’s nearly impossible to expect that Congress will adequately address the resource need.

On the politics of judicial identity

Two recent stories illustrate the slippery role that stereotypes and identity politics play in state judicial elections. In Louisiana, judicial candidate Ron Johnson appeared in campaign ads wearing his twin brother’s judicial robe and calling himself “Judge Johnson.” (His brother is a sitting judge.) Johnson admitted his mistake and accepted responsibility for it, but the intent was clearly to send the message that he was an incumbent judge — and probably to take advantage of the professional goodwill his brother had already amassed on the bench.

Elsewhere, Caroline Cohen defeated three other candidates for a seat on the civil court bench in Brooklyn’s 6th judicial district last Tuesday. But one of her opponents, Tehilah Berman, charges that Cohen — nee Caroline Piela — took her husband’s identifiably Jewish last name shortly before the election in order to attract Orthodox Jewish voters in the district. Cohen apparently also ran ads in Jewish publications with the Biblical injunction “Justice, Justice shall you pursue.” Berman, who finished last in the race, claims that Cohen deliberately presented herself as a devout Jew in order to draw in votes.

We have seen sketchy campaign behavior before, including judicial candidates cynically manipulating their names for electoral gain. Last year, an even more egregious example was set when Chicago lawyer Phillip Spiwack named changed his name to Shannon O’Malley on the theory that a female, Irish name would make him a shoo-in with Cook County voters. Sadly, it worked. In another recent incident, a Nevada judge seeking reelection photoshopped Dwayne “The Rock” Johnson alongside her in a print ad, even though he had never endorsed her candidacy.

But seeing these two most recent incidents side by side was particularly striking, because they both undermine public confidence in the judiciary, but in opposite directions. Ron Johnson’s impersonation of a sitting judge preyed on the positive stereotypes that voters associate with the judicial robe. As I explain in part here, citizens associate the generic judge with a high level of impartiality, dignity, and inherent sense of fairness.  When a judicial candidate dons the robe and is later found to have acted unethically, positive associations with the robe and the judiciary go down.

Caroline Cohen’s name switch (occurring as it did months before the election, and after 13 years of marriage) was arguably even worse, as it sought to take advantage of the modern identity politics that have been sown so dismayingly at the national level. Cohen was banking on Orthodox Jewish voters choosing “one of their own” at the polls, having done no other homework on the candidates or their qualities and qualifications. She turns out to have been correct in that assumption (and indeed, similar behavior has been recorded in various parts of the country for decades), but at what cost? The entire episode moves public beliefs about the judiciary away from the ideals of neutrality, experience, and competence, and closer to the cynical wisdom of “she is one of ‘my’ people, and will put a finger on the scale for me if I ever need it.”

Modern politicians use identity politics divisively to create natural voter bases, and to later whip those bases into a froth with perceived slights against their group. The whole premise is degrading, dehumanizing, and de-democratizing, albeit an effective tool in our troubled times for the small-minded politician. Judges and judicial candidates, however, can never afford to peddle in the cramped and dark politics of identity. In doing so, they give away their greatest assets: the promise of equal justice for all.

Louisiana raises judicial salaries

Louisiana legislators voted overwhelmingly last week to raise the salaries of state judges by 2.5% in the coming year. If funds permit, judges would continue to receive equivalent pay raises for each of the four years after that as well.

The source of the funding struck me as noteworthy:

The Louisiana Supreme Court agreed to cover the first year of pay raises for judges — at an estimated cost of $1.8 million — from its substantial cash reserves. It’s unclear whether judges will continue to tap reserves or turn to state taxpayers to cover future raises, which could cost as much as $9.5 million per year if all five annual pay hikes are awarded.

I thought that judicial salaries typically came from funds controlled by the legislature. It’s quite interesting that salaries are to be paid (at last initially) out of the state supreme court’s “substantial” independent funds.

Judge to appoint special master to assist in remedy phase of Louisiana judicial election case

Almost five years ago, a local branch of the NAACP in Terrebonne Parish, Louisiana, sued state officials in federal court, arguing that the state’s “at-large” system for electing judges systematically disenfranchised minority voters. After a trial in 2017, the federal district court agreed with the plaintiffs that the existing election scheme was unconstitutional. But the parties could not agree on the appropriate remedy, so the judge has asked both sides to suggest candidates for a special master, who will assist the judge in crafting an appropriate remedy.

“The parties didn’t agree on a remedy and the Legislature didn’t pass a remedy, so now it’s the court’s obligation to come up with a remedy,” [NAACP attorney Leah] Aden said on Saturday. “The court isn’t an expert in drawing maps. Judge Dick wants to do everything by the book, so she’s going to hire someone who’s familiar with drawing maps to aid her as an expert to evaluate the maps that we put up and potentially draw their own map. This person is basically a technical expert.”

A federal judge gave the state Legislature the first opportunity to remedy Terrebonne’s voting system, but the only proposed bill during the 2018 session died in committee.

This has been a fascinating case for observing how one sovereign’s judiciary (the federal courts) addresses fundamental issues pertaining to another (a state court system). It will be equally interesting to see how the final resolution plays out.

Federal court upholds Texas judicial elections

A challenge to Texas’s state judicial election scheme brought by Latino voters has been rejected by a federal district court. The lawsuit, brought by La Union Del Pueblo Entero (LUPE), asserted that Texas’s system for statewide appellate court elections diluted the Latino vote in violation of the federal Voting Rights Act. But U.S. District Judge Nelva Gonzalez Ramos rejected that theory, noting that the election outcomes were better explained by (perfectly legal) dominance by the Republican Party.

The result stands in contrast to a ruling in Louisiana last year, in which a federal court found the at-large judicial election system in Terrebonne Parish to violate the U.S. Constitution. One important difference may be that the Louisiana voting scheme called for a parish-wide vote even though each elected judge presided over a specific district. By contrast, the appellate courts in Texas do not have judges preside over specific regions.

Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this NOLA.com story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith.  None of these should derail her nomination.

Continue reading “Some thoughts on the Wendy Vitter nomination”

New Orleans judge: “We do not feel secure” in own courthouse

A Louisiana state judge has publicly stated that she and her colleagues “do not feel secure” in the New Orleans criminal courthouse, citing a dwindling police presence and lax security measures at courthouse entrances.

Previously, at least three unarmed deputies usually were in place to supervise significant numbers of inmates, keep order over audiences and issue subpoenas upon judges’ orders. Recently there have been only two per courtroom, or on rare occasions one.

Officers of the court — such as attorneys and clerk staff — also generally are waved through metal detectors at the court’s two public entrances without being subjected to a search of their person or belongings. [Judge] Flemings-Davillier said that, too, needs to change.

“We are asking the sheriff’s office to reinforce the rules that we already have,” she said, “because they have been lax and we have had some security issues.”

The Orleans Parish Sheriff’s Office has stated that it is unaware of any specific threats or incidents that should make courthouse personnel uneasy.