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”
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.
As COVID-19 cases begin to rise in the Pittsburgh area, the U.S. District Court for the Western District of Pennsylvania has announced a halt to nearly all jury trials until at least February 8, 2021. Law.com explains:
The unavailability of health care workers, high-risk citizens, those who rely on now-limited public transit, “and those who will face substantial childcare challenges arising from the renewed closure of schools … creates a serious impact” on jury selection, the court said.
The situation would demand “ever-larger jury venire pools for potential service and potentially diminish … the representative nature of the pool of summoned jurors,” the court said.
For criminal defense lawyers, they are experiencing huge challenges in being able to communicate with their clients behind bars, a necessity for a fair defense, the order said.
Unfortunately, this is probably just the first of many orders that will similarly affect state and federal courts this winter.
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.”
That is the question I address in my latest guest post at the IAALS Blog. Check it out!
I previously reported on the judicial vacancy crisis in the United States District Court for the District of New Jersey. The court, entitled to 17 active district judges by law (and recommended to have 20), is now operating with only 11 active judges due to a recent spate of retirements. Making matters worse is the district’s docket — the second heaviest in the nation — and the fact that President Trump has not nominated a single candidate to fill the district’s judicial vacancies.
Chief Judge Freda Wolfson has not been shy about discussing the challenges facing her court. Unable to replace judges on its own, the district is seeking creative ways to manage its docket, including encouraging parties to consent to trial by magistrate, turning away multidistrict litigation, and borrowing “visiting” judges from the Eastern District of Pennsylvania.
The use of visiting judges is not new, and the federal courts have shared judicial resources to the extent permitted by law for nearly a century. Indeed, in the early 1920s Chief Justice Taft (a favorite of this blog) proposed a “flying squadron” of judges who would not be assigned to any specific district but would instead be available to serve in any district where needs were the highest. That suggestion was rejected by Congress, but even today the courts show their ability to adapt to resource deficiencies beyond their control, and beyond their ability to remedy directly.
Two remarkable, parallel stories broke this week, each involving the transfer of a state judge to another division within the court system. In Pennsylvania, Judge Lyris Younge was transferred from her longstanding seat in Philadelphia Family Court to the Court of Common Pleas Civil Division. It’s an odd move, given that Younge has almost no civil experience, and that the Civil Division is typically a landing spot for the state’s most highly competent judges. Insiders speculate that the transfer was an administrative effort to “hide” Younge in the Civil Division until an ethics probe related to her (apparently obnoxious) behavior in the Family Court is resolved.
In an eerily similar move in New York, Judge Armando Montano was reassigned from his longstanding seat on the Bronx Criminal Part to the Bronx Domestic Violence Part–a change that Judge Montano has characterized as a “disguised punishment.” Montano argues that moving him from felony cases to domestic violence cases is essentially a demotion. The court administrator disagreed, claiming that it was a “routine administrative reassignment” and that the domestic violence cases that Montano would be handling are “complex.”
The players in both stories seem to be hiding key facts here. Surely there was something specific motivating the transfer to Judge Montano, who is nearing retirement, to an entirely different division. And surely there is some internal reason for transferring Judge Younge to a division in which she has virtually no experience. And those reasons must be significant, since the outcome in both cases is worse for the litigants who are now slated to appear before the judge. Bronx DV litigants can look forward to a disgruntled Judge Montano, who believes that he is above having to rule on their cases. And Philadelphia litigants can hold their breath over Judge Younge’s competence to decide their matters–not to mention her own anger over reassignment. The judges, of course, are keeping mum about their respective behaviors that led to the reassignments.
These incidents keenly demonstrate the complexity of organizational management within a court system. Unable to completely remove judges (who, for reasons of competence, ethics, temperament, or some combination of the three) should not be on the bench, court administrators have to resort to reassignment mechanisms to reduce ongoing problems. When the issues are made public, there is often little they can say. But we can surely read between the lines.
The Pennsylvania Senate yesterday passed a significant redistricting bill that would redraw the maps both for the state legislature and the state’s representatives in Congress. Before the vote was taken, however, Senator Ryan Aument introduced an amendment that would also change the way Pennsylvanians vote for their appellate judges. The amendment calls for judges of the Commonwealth Court and Superior Court to be elected regionally rather than by statewide elections. The amendment passed, and did not seem to effect the passage of the final bill.
Sen. Aument later explained that his amendment would provide all areas of the state with representation on the appellate courts. Proponents also surmise that regional elections would increase voter turnout.
Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:
“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”
Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.
Legislative efforts to impeach four Democratic Justices of the Pennsylvania Supreme Court have been roundly criticized by a wide range of observers. This week, Chief Justice Thomas Saylor (a Republican) and state Attorney General Josh Shapiro (a Democrat) added their voices to the chorus.
Shapiro, a Democrat, said impeachment is “a serious and rarely used tool that is reserved for misbehavior in office, rather than opposition to a justice’s legal opinion.”
He went on to point out that the courts have handed down opinions during his time as attorney general that he opposed but he trusts that they were rendered by the courts “on integrity and based on the law.”
Shapiro said, “The independence of the judiciary is at stake and I would urge clear-thinking members of both parties in the state House to reject this effort.”