race and the law – The Interdependent Third Branch

Joe Biden buries the lead on his own judicial nominees

Joe Biden’s Very Bad Week continues with this unnecessarily tone-deaf press release about his latest round of federal judicial nominees. The nominees themselves are outstanding and highly qualified, and most have judicial experience at the state or federal level. Indeed, several of the nominees have been federal magistrate judges, which gives them special insight into the nuts and bolts of common procedures like arraignments (on the criminal side) and discovery disputes (on the civil side).

But that evidently matters less to the President (and his advisors) than the nominees’ race and gender. The primary focus of the press release is on the number of Latina and Black nominees in this slate. Nothing is said up front about any of their accomplishments (except in very vague and broad language) or (in several cases) their relative youth, assuring the potential for a multi-decade career on the bench. It’s an insult to the nominees, at what should be a great moment in their legal careers, to reduce them to demographic avatars for the purpose of promoting a political agenda.

Let’s give the nominees some of the credit they deserve. Buried deep in the press release, we learn about this slate’s extraordinary diversity of legal experience: on the bench, as both prosecutors and public defenders, in the legal academy, and in private practice in areas ranging from family law to intellectual property. Some even have experience with social work and public education. That range of experience, and the different perspectives is must inculcate, will help the entire federal judicary — both in the courtroom and behind the scenes.

Congratulations to all the nominees.

Two ways of pursuing justice

This week, Jews around the world will read the Torah portion known as Shoftim (Judges). This particular section of Deuteronomy instructs the Israelites to establish judges and officers in their communities, and includes the famous injunction, “Justice, justice shall you pursue.”

Like many, I have long been fascinated and perplexed by this command. Why is “justice” repeated twice? And why are the people instructed to pursue justice rather than to achieve it? The answers that immediately spring to mind — the second “justice” is for emphasis, and the command to “pursue” a nod to the idealism of the rule — do not fit comfortably with the larger text of the Torah. The direct repetition of a word, for example, is not common in Biblical text, and traditional exegesis demands that the second use carry a separate and independent meaning. Over the years, I have heard and read many thoughtful takes on the issue. Perhaps, for example, the repetition of “justice” captures substantive and procedural justice, or justice for the individual and for the community, or social justice and justice under the law.

The term “pursue” is equally difficult. Granted, it is impossible for any society to actually achieve perfect justice; perhaps dogged pursuit is all that can be expected of us. But the Torah includes other commands that are equally inconsistent with human nature. “Do not covet,” for example, is an impossible task for mere humans to adhere to, yet it comes with no qualifying language. So why say “pursue” here?

These questions pop into my mind every year around this time, a natural consequence of reading Shoftim around the start of the new law school year. But this time, there was another reason to take a close look at the Biblical injunction to pursue justice. It came in the form of an extraordinary recent episode of Bari Weiss’s new podcast, Honestly. In this episode, Weiss and guest podcaster Kmele Foster examine the “Central Park Karen” story from last summer. They reveal that the simple, straightforward story that was presented to the public is in fact complex, nuanced, and oftentimes messy. And it raises all sort of difficult questions about how our society metes out justice, both in and out of court.

Continue reading “Two ways of pursuing justice”

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 Jackson President 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.

Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters

Back in 2014, a number of groups led by the NAACP filed a federal lawsuit in Terrebonne Parish, Louisiana, alleging that the state’s “at large” system for electing judges systematically disenfranchised minority voters, in violation of the Voting Rights Act and the Fourteenth Amendment. The plaintiffs sought to replace the “at large” system with five geographic districts which, they argued, would increase the likelihood that a non-white judge would be elected.

After a lengthy pretrial process and a highly publicized bench trial, U.S. District Judge James Brady concluded in August 2017 that the “at large” system was unconstitutional, and ordered the parties to come up with an acceptable solution involving specific judicial election districts. When the parties were unable to do so, Judge Brady appointed a special master in December 2018 to draw a new district map.

Meanwhile, the defendants (essentially the State of Lousiana, through its Attorney General) appealed Judge Brady’s decision to the Fifth Circuit Court of Appeals. At the end of June, that court reversed Judge Brady, concluding that the plaintiffs had not met their burden under Thornburg v. Gingles and related Fifth Circuit precedent. Gingles requires that a party challenging an at-large voting system on behalf of a protected class of citizens demonstrate that “(1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.” Continue reading “Fifth Circuit reverses holding that Louisiana’s judicial elections disenfranchise minority voters”

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”

Educational and experiential diversity on the federal bench

A guest post by Lawrence Friedman

As recently noted in the Interdependent Third Branch, the novel coronavirus has caused the U.S. Supreme Court to close its doors to the public until further notice. Several of the justices fall into the category of persons most vulnerable to the disease: Stephen Breyer is 81 years old; Ruth Bader Ginsburg will be 87 next week; and Clarence Thomas is 71. Three other justices are in their sixties: Samuel Alito is 69, while both the chief justice, John Roberts, and Sonia Sotomayor are 65.

The list is a reminder of how gray the Court has become—and that the potential for multiple appointments is going to be a significant campaign issue in November. One aspect of that issue is the lack of diversity on the Court, which reflects the lack of diversity in the federal judiciary. A February report by the American Constitution Society put it bluntly: “judges who sit on the federal bench are overwhelmingly white and male.” In addition to gender and race, moreover, most judges at the highest levels of the federal system share another characteristic: they all attended a very small number of elite law schools. As the New York Times recently noted, most of President Donald Trump’s judicial appointees “have elite credentials, with nearly half having trained as lawyers at Harvard, Stanford, the University of Chicago or Yale.”

Consider the members of the Supreme Court. Four justices hold law degrees from Yale Law School, four from Harvard Law School and one – Ginsburg – started at Harvard and finished at Columbia Law School. Eight served as judges on federal appeals courts, while one – Kagan – served previously as solicitor general and, before that, dean of Harvard Law School. Just one –Sotomayor – served as a federal district court judge. Three served at one time as full-time law professors—Breyer and Kagan at Harvard, Ginsburg at Columbia.

Or, consider the members of the junior varsity Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit. Of the eleven judges not on senior status, five graduated from Harvard, two each from the law schools at the Universities of Virginia and Chicago, and one each from Stanford University and the University of North Carolina Chapel Hill. Only two served as district court judges prior to being elevated to the Appeals Court.

Twenty judges total and, among them, they represent just seven law schools, with almost half just one, Harvard. Only three, moreover, know what it is like to oversee civil and criminal litigation on the ground, to hear motions to suppress and make evidentiary rulings at trial.

This lack of intellectual and experiential diversity is not new. Observing, a decade ago, that Sotomayor would add diversity to the supreme court in respect to ethnicity, gender and economic origins, Renée Landers and I nonetheless concluded that selecting nominees from within a narrow range of qualifications defined by pedigree effectively deprives the public of judges “who may see the world and the legal issues it presents in ways that are different and more helpful than those [judges] whose views on the law were shaped by essentially the same educational and professional experiences.”

The American Constitution Society is right: “Courts should look like the people they represent,” which I take to mean the citizens the federal judiciary serves. But such diversity should not be limited to gender and race or ethnicity. Rather, on the nation’s highest federal courts, it should encompass the varied educational and practical experiences available in a profession that produces countless lawyers who have not served as either federal appellate judges or law school professors.

As in other areas of the law, presidents and senators could look to the states for other approaches. Just as state courts have been leaders in exploring the breadth and depth of constitutional commitments to individual rights and liberties through their own constitutions, so too have appointing authorities in many states valued diverse educational and practical experiences in selecting judges for their high courts. Of the justices of the Massachusetts Supreme Judicial Court, for example, three attended Harvard and one Chicago, while two attended Suffolk University School of Law and one Boston University Law School. Five sat earlier in their careers on the state’s trial court.

Elite law schools and federal appellate judges have no monopoly on teaching legal reasoning or applying it, respectively. It stands to reason that lawyers trained to consider the practical implications of doctrinal changes and how such changes may affect the parties before them are likely to have a different appreciation for the consequences of appellate decisionmaking. This is not to suggest that these judges make better decisions—just that, to the extent each of us is shaped by our experiences, the high courts on which these judges sit are likely to benefit from the perspectives they bring to bear on the resolution of disputes over statutory and constitutional meaning. It is important, as the American Constitution Society and others maintain, that judges look like the people they serve. It should also be important that they reflect the ways in which most American lawyers appreciate both the law and the role judges play in defining it.

This post is the first of a larger exchange on Supreme Court qualifications and the nominating process. For Jordy Singer’s response, click here. For Lawrence Friedman’s reply, click here.

New York judge calls for reform to state bail law

Earlier this year, New York State’s poorly thought-out bail reform law formally went into effect. (New York City courts began implementing it even earlier under the directive of Mayor Bill de Blasio.) The law requires state judges to release criminal defendants without bail except in the most egregious cases. While the law was intended to address perverse effects of existing bail laws on minority communities, it backfired spectacularly from the very start. In December, a woman accused of an anti-Semitic attack on the streets of New York City was released even after admitting her deed; she was involved in another criminal incident less than 24 hours later (and eventually was charged with federal crimes for which bail is required). She was not alone: many stories have identified criminal defendants who were released without bail despite being charged with violent crimes; some of the defendants have even expressed their own surprise at being released. Both de Blasio and New York Governor Andrew Cuomo, who initially championed the legislation, have publicly announced that they have had second thoughts.

The law is deeply problematic because it denies state judges a role fundamental to their jobs: the discretion to determine the conditions under which a criminal defendant should be released. Now some judges are speaking out against it themselves. At a recent forum, Bronx Criminal Court Judge George Grasso called for immediate efforts to change the law:

Grasso, a former deputy police commissioner, acknowledged the deep racial and income disparities that informed the push to overhaul the bail law, but said state lawmakers should amend the measure to allow for judicial discretion in setting bail and remanding defendants considered dangerous.

“The scope of removal of judicial discretion on bail matters in this reform package is breathtaking,” Grasso said in prepared remarks. “New York State is the only state in the United States that does not let judges consider ‘dangerousness,’ but instead resorts to twisted logic.”

“We should stop the charade now,” he continued. “It is my opinion that without significant changes, the current legislation will not only be a missed opportunity for long overdue criminal justice reform, but also a significant threat to public safety.”

This is a noteworthy development. Judges typically do not speak publicly on the state of the law, even laws that directly affect the administration of courts and the justice system. Offering a personal opinion on the validity or effectiveness of a law opens a judge to charges of bias or partiality. So it takes a real crisis for judges to feel the need to speak out so publicly.

And Judge Grasso is right. Whatever its original intent, the new law ties the hands of the courts, makes New Yorkers less safe, and reduces public confidence in the criminal justice system.

Final arguments conclude in NAACP’s challenge to Alabama’s judicial elections

The slow-moving federal court challenge to Alabama’s method of electing its appellate judges reached another milestone on Wednesday, when the parties gave their final arguments in a case filed back in 2016.

The Alabama State Conference of the NAACP is arguing that the Alabama’s method of at-large voting for state appellate courts impermissibly dilutes the votes of African-American voters, in violation of the federal Voting Rights Act. As evidence, the plaintiffs point to the fact that no black candidate has ever been elected to the state’s civil or criminal appellate courts, and only two have been elected to the state supreme court. The state has countered that standard party politics, not race, provides the best explanation for the election outcomes.

A federal judge denied the state’s motion to dismiss the case, and held a bench trial last November. After a lengthy delay brought on by the state’s appeal to the Eleventh Circuit on the denial of the motion to dismiss, the trial court held oral arguments to conclude the bench trial this week.

There is no indication when the judge will issue his decision. But whatever his final ruling, this case is a nice example of how life tenure shields him from some of the inevitable political fallout that will result from any decision he makes. If only his counterparts on the state bench enjoyed that same freedom from political pressure. But as both sides in the case made clear on Wednesday, viewing judges as politicians seems to be par for the course in Alabama.

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.

New developments in lawsuits concerning judicial elections in Alabama and Arkansas

Two lawsuits involving judicial elections–one each in Alabama and Arkansas–were the subject of new developments this past week.

In Alabama, the NAACP and Lawyers Committee for Civil Rights filed a federal lawsuit alleging that the state’s method of electing state appellate judges discriminates against African-American voters. The lawsuit claims that the absence of black judges on any state appellate court is the result of discriminatory vote dilution tactics. The state moved to dismiss the case on the grounds of sovereign immunity, but U.S. District Judge W. Keith Watkins denied the motion to dismiss, and set the case for a bench trial. Attorneys for the state have now taken their case to the Eleventh Circuit Court of Appeals, asking that court to overturn Judge Watkins’s refusal to dismiss the case.

The Arkansas case involved a controversial attack ad against incumbent state judge Courtney Goodson, who was seeking reelection. The Judicial Crisis Network, a conservative group, had been running the ad on several stations in northwest Arkansas when a county judge barred its further broadcast in May. The corporate owner of a Little Rock television station appealed the injunction. But last week, the state court of appeals ruled that the issue was now moot, since Justice Goodson has won reelection, and the ad was no longer airing. The issue may be moot for now, but the larger issues–prior restraint of political speech, the influence of “dark money” in elections, and the wisdom of electing judges in any event–remain.