Electoral chickens come home to roost in North Carolina courts

Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.

The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.

There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).

So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).

Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.

 

Kimberly Budd tapped as new Chief Justice of Massachusetts Supreme Judicial Court

Massachusetts Governor Charlie Baker has nominated Kimberly Budd to serve as the next Chief Justice of the state’s Supreme Judicial Court. Budd is currently as Associate Justice of the Court. She would fill the opening created by the untimely death of Chief Justice Ralph Gants last month.

Justice Budd is an outstanding choice. She is incredibly accomplished, well-respected, and has an excellent judicial demeanor. She will serve the Court, and the people of Massachusetts, well in her new position.

In Memoriam: Ralph Gants

Today brought the terrible news that Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, passed away days after suffering a heart attack. He was 65.

I first met Chief Justice Gants more than two decades ago, when he was an Assistant United States Attorney and I was his student in a white collar crime course at Harvard Law School. He was an active and encouraging teacher both in class and behind the scenes.

Justice Gants eventually moved to the judiciary, and made a clear mark as Chief Justice. His focus on attorney well-being and justice for all set the tone for the entire state judiciary. While I sometimes disagreed with his administrative decisions, I greatly admired his passion, commitment, and sincerity. He will be sorely missed.

Fife et al. on state Chief Justice selection

Madelyn Fife, Greg Goelzhauser, and Stephen Loertscher have posted their article, Selecting Chief Justices by Peer Vote, to SSRN. Here is the abstract:

What characteristics do state supreme court justices prioritize when choosing leaders? At the federal level, collegial court chiefs are appointed or rotated by seniority. A plurality of states permit peer-vote selection, but the consequences of employing this mechanism are not well known. We develop a theory of chief justice selection emphasizing experience, bias, and politics. Leveraging within-contest variation and more than a half century’s worth of original contest data, we find that chief justice peer votes often default to seniority rotation. Ideological divergence from the court median, governor, and legislature is largely unassociated with selection. Justices who dissent more than their peers are, however, disadvantaged. We find no evidence of discrimination against women or people of color. The results have implications for policy debates about political leader selection.

This is a useful study, in that it suggests that state high courts are choosing their chief administrative officers (who are also often the face of the state judiciary) primarily on the basis of experience and interpersonal compatibility. To which I say, good.

California Chief Justice given power to suspend laws in wake of coronavirus

An extraordinary story out of California: Governor gives Chief Justice broad powers, including suspending laws, during coronavirus crisis. A snippet:

[Governor Gavin] Newsom’s order, issued Friday, gives [Chief Justice Tani] Cantil-Sakauye extraordinary powers, including the right to suspend laws.

The law is filled with deadlines, many to protect the rights of criminal defendants. There are public access requirements and rules about how legal matters should be conducted.

The governor said on Saturday the executive order was designed to give the judicial branch the flexibility that its leaders had asked for.

“This will allow them the ability, in real time, to meet the needs of the criminal and civil justice system,” he said during a COVID-19 news conference in San Jose.

Cantil-Sakauye said she assured Newsom that the new powers would be assumed “with utmost care and judiciousness.”

She stressed they were temporary and needed to ensure “the justice system will be available to those most in need.”

These are extraordinary times, and it makes sense to help an overburdened justice system be more nimble. But my immediate reaction is that even for the short term, this is a dangerous reallocation of power.

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.

Iowa gets new Chief Justice

The Supreme Court of Iowa has selected Justice Susan Christensen to be its next Chief Justice. She will take over duties from Acting Chief Justice David Wiggins, who is set to retire from the court in mid-March. Wiggins stepped into the interim role after the sudden death of Chief Justice Mark Cady last November.

Christensen will administer to and preside over a five-member court that has been radically remade in the last few years. Governor Kim Reynolds has already appointed three members of the court since 2017, and the Wiggins retirement will provide an opportunity to appoint a fourth justice.

Party politics and judicial nominations in Michigan

The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.

Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.

The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.

Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.

The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?

It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.

Judge Larsen on State Courts in a Federal System

Regular readers of this blog know that I believe Judge Joan Larsen, of the Sixth Circuit Court of Appeals, to be a prime candidate to fill the next Supreme Court vacancy should another seat open up during the Trump Administration. Late last year, Judge Larsen delivered the Sumner Canary Memorial Lecture at Case Western Reserve Law School in Ohio, and that school’s law review has just published her remarks.

The lecture is a short and valuable exposition on the often nuanced relationship between state and federal courts–something Judge Larsen knows well. I highly recommend the entire piece to the reader. But a couple of points she made struck me as particularly interesting from an organizational perspective.

Continue reading “Judge Larsen on State Courts in a Federal System”