Tag: media

Roberts to Congress: Thanks, but we’ve got it all under control

For 2022, the Chief Justice leans into an alternative view of judicial independence. Will it be enough to keep Congress at bay?

Chief Justice Roberts’s 2021 Year-End Report on the Federal Judiciary, dropped (as always) on New Years Eve, struck a more substantive and somewhat edgier tone than in years past. The Chief Justice identified three particular areas of focus for the Judicial Conference of the United States in the coming year: addressing financial disclosure and recusal obligations for federal judges, monitoring new mechanisms for reporting and stopping workplace harrassment, and preventing undue forum shopping in patent cases.

All three of these issues have been the subject of regular, and sometimes intense, Congressional scrutiny in recent years. But the Chief Justice’s report largely rejects the prospect of legislative fixes. Rather, consistent with the federal courts’ approach to the workplace harrassment scandal when it first broke in 2017, Roberts assures his readers that the Judicial Conference is willing and able to handle each of these issues internally. 

It’s not to see why the Chief Justice would go this route. As this blog has routinely described, the federal courts (like all courts, and indeed all organizations) operate under constant pressure from their external environments. Neoinstitutional theory identifies three types of pressure: coercive (the need to comply with legislation and other government mandates), mimetic (the need to be in line with similar institutions in order to maintain legitimacy), and normative (the need to adhere to social and professional norms). The federal courts face all three types of pressure, but are particularly susceptible to coercive and normative pressures. If the federal judiciary is not seen as ethical and apolitical, it will face Congressional action and lose legitimacy with the bar, the media, and the public. 

There is no question that the pressure has been turned up in recent weeks. The Wall Street Journal‘s expose on federal judges who failed to recuse from cases in which they held a financial stake was a significant blow to the judiciary, and has invited Congressional hearings. Some in Congress have used the scandal as an opportunity to resurrect additional transparency proposals, including courtroom cameras and free PACER access. And, of course, the progressive effort to pack the Supreme Court looms in the background, along with the ongoing politicization of judicial confirmation hearings and the Supreme Court’s forthcoming decisions on abortion and gun rights. It is fair to say that the federal courts are currently facing more external pressure and scrutiny than at any time since the 1960s. Continue reading “Roberts to Congress: Thanks, but we’ve got it all under control”

A roundup of interesting state court developments

Several interesting and important developments have taken place in state courts this past week. Among them:

  • The Chief Judge of the Hennepin County (Minnesota) District Court announced that the court has a backlog of 3,000 cases that must be resolved by 2023. Nearly 90 percent of those cases are criminal matters. Meanwhile, the COVID-19 pandemic has led to 89 percent of all court hearings being held remotely. 
  • New Hampshire has a new state court administrator. Dianne Martin was most recently the Chair of the state’s Public Utilities Commission, and has worked in and with the state colurt system for nearly twenty years.
  • And Idaho’s state court administrator has been named in a federal lawsuit filed by Courthouse News Service, alleging that the state’s practice of posting new case filings impermissibly delays public and media access to new case information. Courthouse News Service has filed similar lawsuits against other court administrators in the past, each time alleging that the court’s default position should be to provide immediate electronic access once a matter is filed.

What is fueling the federal courts’ response to the judicial recusal crisis?

Everyone wants the same thing and Congress seems ready to act. So why is the court system trying to keep legislation at bay?

Recently, I have been diving back into organizational theory — a set of theoretical frameworks about how organizations operate which inspired the creation of this blog in 2017. I have been particularly curious about the extent to which the behavior of courts and court systems — as opposed to individual judges — can be explained by external pressures from the courts’ environment. Although much of organizational theory began as a way of explaining the behavior of private firms, it has been extended to the public sector, and I am now convinced that it can profitably explain a wide range of court system behaviors.

Take a very recent example: the Wall Street Journal investigation this month, which revealed that more than 130 federal judges had presided over cases involving companies in which they owned stock. Such financial conflicts clearly require recusal, and while many (perhaps most) of the judges who did notJudge_Jennifer_Walker_Elrod recuse gave plausible explanations that they had simply failed to keep tabs on their trades, the situation has been highly embarrassing for the federal judiciary. The Administrative Office of the U.S. Courts said that the report was “troubling” and that it was “carefully reviewing the matter.” And this week, Fifth Circuit Judge Jennifer Walker Elrod appeared before a subcommittee of the House Judiciary Committee to reaffirm that the federal courts “have taken and will continue to take action to ensure ethical obligations, including recusal and reporting requirements, are met.”

Such assurances may not be be enough for Congress. Bipartisan bills have been introduced in both houses to tighten recusal and reporting requirements. The Senate bill would also require the AO to develop a publicly accessible, searchable online database of judges’ financial disclosures. The federal court system therefore finds itself scrambling to avoid a legislative mandate by showing that it is able to police its financial conflicts internally. Even then, it may not be able to stave off new legislation.

This may seem like ordinary damage control. But the court system’s specific behaviors to date, and range of possible responses going forward, can also be understood through the lens of an organizational theory known as neo-institutionalism. And that theory suggests that the court system’s response is very deliberate and very calculated. Continue reading “What is fueling the federal courts’ response to the judicial recusal crisis?”

Great moments in online media

From my web browser’s news feed this afternoon:

Screenshot 2021-10-14 15.07.40 cropped 

The Sotomayor story is somewhat intriguing in its own right, since the most obvious change in the Supreme Court’s post-pandemic non-interruption policy has been the emergence of a vocal and inquisitive Justice Thomas at oral arguments. One can only wonder what he might have asked over the past thirty years if he had not been swimming in the Court’s predominant ethos of  argumentum interruptus.

Biden tips his hand on the next Supreme Court nominee

Keep an eye on Judge Ketanji Brown Jackson, the newest nominee to the D.C. Circuit.

Ketanji Brown JacksonPresident Biden has issued his first list of intended judicial nominees, mostly to federal district courts across the country. They are a highly accomplished and — as best I can tell — highly qualified group of nominees. 

Perusing the list, I’m going to call my shot now and predict that whenever an opening on the Supreme Court occurs, the  President’s first nominee will be Judge Ketanji Brown Jackson. Judge Jackson is already a well-respected federal district judge, and is set to be nominated to the U.S. Court of Appeals for the D.C. Circuit. She therefore follows the path of other budding judicial stars who were elevated to the circuit courts before an eventual Supreme Court nomination by the same president. (Justice Amy Coney Barrett is the most recent example.) Judge Jackson also checks all the boxes: she is brilliant, accomplished, hard-working, well-respected, relatively young, and (important for Biden’s camp, at least) a Black woman. She is also kind, professional, and gracious — at least that is the clear memory I have from the time we overlapped as litigation associates at Goodwin Procter nearly twenty years ago.

Predictably, much of the mainstream media is focusing on the race and gender of the nominees, rather than their exceptional talent and qualifications. This does a remarkable disservice both to the nominees and the public. It reduces a lifetime of individual hard work, achievement — and yes, most assuredly some luck — to a crass demographic calculation. And it communicates that their skills and abilities are secondary to their immutable characteristics, a message that can only reduce confidence in judicial decisions and the court system as a whole.  

Congratulations to all the nominees. The country will better off with your skill and talent filling our open judgeships.

Israel’s High Court opens to cameras

The Times of Israel has a wonderful long-form piece on the decision of Israel’s High Court of Justice to open its proceedings to videocameras, just in time for a contentious political and legal fight over the proposed creation of a new unity government. The story explains how the High Court — facing charges that it had become increasingly political and therefore untrustworthy — decided to open its deliberations to public view. A snippet:

The fears of contamination and spectacle have been overtaken by growing frustration that the court’s story was being told by others, by right-wing critics and left-wing moralists, that no one was left in the public debate to defend the court on its own terms, to argue its deliberations were earnest and exacting and its concerns legal rather than political.

And so Chief Justice Esther Hayut embarked on a “pilot” project in mid-April to broadcast many of the court’s hearings and deliberations to the outside world — just in time for the most contentious and politically significant hearings in the nation’s recent history.

The result has been a revelation. For the first time, Israelis could watch the proceedings in their entirety. And according to the Government Press Office that managed the broadcast, about a million Israelis watched the deliberations on Sunday and Monday — 130,000 just through the GPO servers, and the rest via the live broadcasts on all three major television channels and multiple online news outlets.

They watched the justices push back against all sides, saw their frustration with the sloppiness and grandstanding of the left-wing petitioners and their pinpoint questions to the representatives of the right that forced unexpected compromises.

Again and again, the justices interrupted attorneys’ speeches prepared not for the courtrooms but for the cameras.

Sunlight is the best disinfectant, for the viewer as much as the viewed.

What does a court hearing by videoconference look like? Here’s an example.

Kudos to the Miami Herald for posting this story on the first Zoom hearing in a criminal case in the Miami-Dade court system. Most interestingly, the story includes an edited video of the hearing, in which the judge sat in the courtroom, the prosecutor on her home patio, and the primary witness in the front seat of his police SUV.

It is reassuring to see that the justice system is continuing to operate relatively smoothly under difficult circumstances. It is also comforting to observe how seriously some courts are taking their ongoing responsibility to provide transparent and accessible justice.

Judge finds a First Amendment right to access civil complaints without delay

A federal judge in Virginia has concluded that there is a qualified right to review state court civil complaints immediately after they are filed. The judge’s ruling came after the Courthouse News Service sued Virginia state court officials, alleging that court clerks in two counties were instructed not to provide access to new complaints until the documents had been scanned and uploaded to a public access terminal.

The federal court declined to issue an injunction in the case, noting that state court officials appeared to be trying to comply with their obligations in good faith. The court required the parties to appear for a joint status conference in August to discuss the level of access provided by the defendants.

There is always a certain tension between the public’s right to know about civil cases brought in its court system, and respect for private litigants. But there is no question that the right balance here falls in favor of First Amendment rights. Litigants are free to seek orders that seal or otherwise protect their court filings in appropriate circumstances.

A transparent media attempt to politicize judicial resources

As it does every year, the Administrative Office of the U.S. Courts has propounded a budget request to Congress for the upcoming fiscal year. The new request seeks a 4.4% increase in the overall judicial budget, with the money helping to cover Congressionally approved judicial pay raises, updating older facilities, and implementing federal legislation concerning the courts. More money is also needed for base salaries because many federal judicial vacancies — especially at the district court level — have been filled over the past year.

But that didn’t stop the reporters and editors at Bloomberg Law from telling us what the increase is really about: Donald Trump. In a story titled, Judiciary Requests More Money for Trump Judges, Bloomberg asserts:

President Donald Trump’s judicial appointments are among the factors contributing to the federal judiciary’s request to Congress for a 4.4% increase in its budget.

Trump has moved aggressively to fill the federal judiciary with conservatives. So far, that’s resulted in 188 judicial appointees to federal district and appeals courts, and two justices on the Supreme Court: Brett Kavanaugh and Neil Gorsuch.

The judiciary’s requested funding boost for the next fiscal year takes into account money needed to provide salary and benefits for a higher-than-expected volume of judges confirmed and their chambers staff, a judiciary spokesman said.

This is remarkably lazy writing and editing. The headline is slanted — the money is for the workings of the entire judiciary, not just “Trump Judges” — and the opening grafs suggest that there is something unseemly about the President and Senate fulfilling their constitutional roles to populate the judiciary.

There is probably little practical harm that will come out of this sloppy article, but the public — and the courts — deserve better.

Transparency and resource demands combine to squeeze the Maryland courts

The Capital Gazette reports on a loophole in Maryland’s electronic filing system, which allows attorneys to designate documents as “confidential” without filing a separate motion to seal with the court. Using the designation effective prevents interested parties, including the media, from accessing the court filings.

Court documents are presumed to be publicly available, and normally a party must move the court to seal specific documents and provide good reasons for the request. It appears that when Maryland moved to electronic filing in 2014, the system was set up to allow attorneys in cases with exposing sealing orders to designate certain documents as confidential. Lawyers are warned not to designate documents as confidential unless they are covered by a rule or statute. It appears, however, that many documents that should be public have been improperly designated.

The courts do not monitor electronic filing designations on a regular basis, which is probably sensible given the court system’s limited resources. But some greater allocation of resources — either in monitoring or in fixing the electronic loophole — may now be warranted.