Recently in Judicial Selection Category

SJC: Take a Close Look at Ms. Loretta Lynch

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Various sources are confirming that Ms. Lynch will be the nominee to replace Eric Holder.  Presumably her nomination will go to the Senate Judiciary Committee (SJC).

Last July, the WSJ had this piece on Ms. Lynch.

Readers might recall that it was Ms. Lynch who gave in to Judge John Gleeson's unethical and baseless windfall for a repeat violent carjacker, Francois Holloway. I described the case in some detail here.  It's a scandal, there's no other word for it.

She initially resisted Gleeson's bullying, to her credit.  When he kept it up, however, she gave in.  One of her AUSA's wrote a legally and factually frivolous motion to vacate two of Holloway's convictions in order to enable Gleeson to impose the more lenient sentence he had been campaigning for for years.

I think it deeply troubling that a United States Attorney would sign a motion to vacate two perfectly valid convictions  --  indeed, convictions whose validity was not questioned.  The motion and accompanying argument were pasted together for the sole purpose of placating Gleeson's petulance.

The Senate Judiciary Committee should take a careful look at Ms. Lynch's role in the Holloway case.

Judges and the Filibuster: What to Do Now?

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As Kent has pointed out, one of the advantages of a Republican majority in the Senate is that it is likely to constrain the President in appointing judges who value "compassion" (or their version of compassion) over law.

In the old Senate, Harry Reid changed the rules governing how filibusters would be conducted on the nominations of court of appeals judges.  Instead of taking 60 votes to end debate, as it had for years, Sen. Reid and his party re-rigged the rules so that it took only 51.  When Democrats had a 54-seat majority, this enabled them to get Obama's nominees to the floor at will.

Now that Republicans will have their own 54-seat majority, the question has arisen whether they should bring back the old rule requiring 60 votes to end debate, or keep the rule as Reid changed it.

Very bright people have different answers.  My old boss and friend, former White House Counsel Boyden Gray, says in the Wall Street Journal (in a piece co-authored with Sen. Orrin Hatch) that we should keep the new rule.  My friend Paul Mirengoff of the influential conservative blog Powerline thinks we should restore the old rule.

This makes a big difference.  Boyden and Paul are both brilliant.  My take on it follows the break.

Trouble Brewing

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I think our readers will be able to figure this one out for themselves.  Some of the President's judicial picks have been first-rate minds and very good people.  Still, a priori, a prosecutor probably would not want an Obama-selected judge sitting on a close criminal case.

See also this article about the largely unnoticed stakes in the upcoming elections.
Five years ago, California Governor Arnold Schwarzenegger nominated former state Senator Charles Poochigian to the state Court of Appeal.  He was evaluated by the State Bar Commission on Judicial Nominees Evaluation and given the lowest rating, Not Qualified.  This was not because of his personal characteristics.  On the contrary, reported Kenneth Ofgang in the Metropolitan News-Enterprise at the time,

JNE Commission Chair Jonathan Wolf of San Francisco wrote to the chief justice that the nominee "is intelligent, diligent, and articulate...is an independent thinker, courteous, and even tempered...works well under pressure and demonstrates courage, compassion, and common sense...is a hardworker...and...is committed to public service."
So what was the problem?  There was one and only one.

But Poochigian's legal background does not qualify him for the appellate bench, Wolf said, explaining:

"He had not practiced law for approximately 21 years and had not litigated a case in approximately the same amount of time. Moreover, he has no jury trials and no criminal law experience."

The commission did consider Poochigian's experience in the Legislature, including his work on criminal law issues as vice chair of the Senate Public Safety Committee, but did not find this sufficient, Wolf related.
Why bring this up five years later?  Governor Jerry Brown recently nominated Stanford Law Professor Mariano-Florentino CuĂ©llar to the California Supreme Court.  His CV, while otherwise impressive, is devoid of practical legal experience.  Does the JNE Commission have a problem with that?  Oh, heavens to Betsy, no.  "A state bar evaluating commission gave Cuellar ... its highest rating: exceptionally well qualified," reports Maura Dolan in the LA Times.

Does an otherwise well qualified nominee with little, no, or stale practical legal experience deserve the highest rating or the lowest?  The answer, if the rating is done by the California State Bar's commission, depends entirely on political alignment.

Claims that removing judicial nomination functions from elected officials and turning them over to bar committees will remove politics from the process are complete hokum.

What's the Matter with Kansas?

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Its state supreme court, that's what.  That court is as bad on capital cases as California's old pre-1986 Bird Court was.  They don't seem to learn from their repeated reversals by the U.S. Supreme Court, including last term's unanimous Kansas v. Cheever (CJLF brief here).  In July 18's reversal of the death sentence of a double murderer, Justice Biles notes in dissent:

I dissent from the majority's holding that Sidney Gleason's sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority's conclusion defies the United States Supreme Court's established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.

Nominees and the Senate

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Al Kamen and Colby Itkowitz have this story at the WaPo on nominees left hanging "when senators ran for the exits on Friday."  They note a deplorable situation on ambassadorships -- with plenty of blame to go around -- but the pertinent part for this blog is judicial nominations.

Remember Jimmy Carter?  He was only President for one term in what seems like ages ago.  Yet he caused enormous and long-lasting damage through his judicial nominations.  It was on his watch that the Ninth Circuit became the jurisprudential disaster area that it remains to this day.  All three of the judges on the three-judge district court in the Plata prisoner release fiasco were Carter appointees.  Thank God he didn't get any Supreme Court appointments.

Until last November, Republicans were filibustering President Obama's worst nominees, a tactic they deplored when President Bush was making the nominations.  Then Majority Leader Harry Reid invoked the "nuclear option," a move he denounced as a travesty when President Bush was making the nominations.

Kamen and Itkowitz note that "the clock is not looking favorable" for the eight district court nominees pending on the Senate floor.  Hopefully, the 114th Congress will have a Republican majority in the Senate and on the Judiciary Committee, with Charles Grassley in the chair, and fringe nominees can be blocked with a simple majority vote or not even make it out of committee.

Impeach Earl Warren

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Most readers are probably not old enough to remember the demand, largely but not entirely from segregationists unhappy with Brown v. Board of Education, to "Impeach Earl Warren."  Although in criminal law Warren was a willing tool of the much smarter William J. Brennan, and the author of one of the all-time most lawless decisions (Miranda), there were no grounds to impeach him.  Just being a liberal or not very smart is not an impeachable offense.  So the "Impeach Earl Warren" crowd was relentlessly dismissed and ridiculed, not without reason.

Yesterday, the new version of "Impeach Earl Warren" showed up in the form of Senior United States District Judge Richard Kopf, who, in expressing his disagreement with the Hobby Lobby decision, point-blank told his superiors on the Supreme Court to "shut the f___ up."  He did this on his widely read blog, "Hercules and the Umpire."

The question has understandably been raised whether Judge Kopf should continue blogging.  It's the wrong question.  The correct one is whether he should continue judging, and the answer is no.

Barron Makes It Through

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Ex-Stephen Reinhardt clerk and hard-core liberal Harvard law professor David Barron was confirmed by the Senate today for a seat on the First Circuit.  He could not have made it through under the filibuster rules that Harry Reid ended in order to allow the President to pack the DC Circuit.  As we now see, it's not just the DC Circuit that will be headed downhill.

Kent had an earlier post on Barron.

The Barron Fight

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The WSJ has this editorial today (subscription required) with the above title:

Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.
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The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."

In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.
The President has nominated for a seat on the First Circuit the ghost of America's worst federal circuit judge, Stephen Reinhardt.  Indeed, the nominee, Harvard law professor David Barron, is worse than merely Reinhardt's ghost; he's Reinhardt's ex-clerk.  I guess if you're going to learn pro-criminal extremism, you might as well learn from its Number One judicial practitioner.

But even with a Senate dominated by the President's party, Barron seems to be in trouble. As the Hill reports, Sen. Rand Paul has placed a hold on the nomination:

Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama's appellate court nominees because of his role in crafting the legal basis for Obama's drone policy.

Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron's nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.

Talk about a conundrum!  On the face of it, Barron seems like a nominee it's worth pulling out all the stops to oppose.  But with enemies like Patrick Leahy and the ACLU (see below), should we have second thoughts?




Nominee for USCA 6?

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Andrew Wolfson reports for the Louisville Courier-Journal:

Kentucky Supreme Court Justice Lisabeth Hughes Abramson of Louisville is being vetted by the FBI for a seat on the U.S. Court of Appeals' 6th Circuit.
I have it on solid local authority that she would be a vast improvement over the departed Judge Boyce Martin.

Do You Like Stephen Reinhardt?

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I sure hope you do, because you're about to get lots more judges just like him.

Today, the man who endlessly prattles about civility and bi-partisan cooperation, Majority Leader Sen. Harry Reid, with the backing of the (current) Democratic membership in the Senate, changed the filibuster rule for judicial nominees below the Supreme Court.  In doing so, he broke precedent that I believe has been in effect in the Senate for about 200 years. To their credit, three Democratic Senators, Levin, Manchin and Pryor, voted with all Republicans against the change.

Why, you may ask, is this happening now?  As usual in Washington, and particularly with this hyper-political Administration, it has to do with raw power (remember, e.g., that we got Obamacare on a Democrats-only vote, critically facilitated by what we now know was a flagrant lie about whether Americans could keep their own policies if they liked them).

In particular, President Obama has three candidates for the DC Circuit who have been unable to clear the filibuster hurdle as it stood until today.  Among them is the cordial but ideological Georgetown Law Prof. Cornelia Pillard, who has been described as "Reinhardt in a skirt but less moderate."  The Administration has an ambitious regulatory agenda it can't get through Congress because the opposition party controls the House.  It thus plans to push through what it wants via executive orders and administrative agency rules, all of which will be challenged in court.  And the court that will decide those challenges will be none other than the DC Circuit.  My goodness!

Dr. Frankenstein Nukes His Monster

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Filibustering of judicial nominees was virtually unknown until the Democrats began regular filibusters during the previous administration.  The WSJ has this Q&A on the "nuclear option," changing the rules of the Senate to prevent filibusters of presidential nominees to executive and judicial positions. 

In 2005, Republican senators threatened to [do the] same in the face of Democratic opposition to former President George W. Bush's judicial nominations. In 2008, Mr. Reid himself swore that as long as he was leader, he would never turn to the nuclear option, saying it would be a "black chapter in the history of the Senate."
Today the Senate did just that, passing the rule amendment 52-48.

Also in the WSJ is this story by Janet Hook and Kristina Peterson:

Democrats say the filibuster has been abused as a weapon of obstruction rather than a last-resort vehicle for principled opposition. Republicans have "turned 'advice and consent' into divide and obstruct,'' Mr. Reid said.
But Republicans didn't "turn" anything.  They continued straight down the trail that Reid himself had blazed when the shoe was on the other foot, although treading it somewhat more often.  Republicans have some degree of hypocrisy in their rhetoric as well, of course, but Reid takes the prize.

So for the next year, President Obama will be able to fill vacancies on the federal bench with judges who share his viewpoint to a much greater degree that President Bush was able to.  Whether that continues into the last two years of his tenure depends largely on the outcome of the next election.  It would take a pretty hefty Republican sweep to change things, but gains for the out-of-White-House party are the norm for second-term mid-term elections.

For the next four years after that, if the American people follow their usual post-WW II practice of turning over the White House every eight years (well, almost every), today's vote will result in a Republican President having a freer hand.  Hopefully the people will continue with their traditional wisdom.  Political parties are like compost piles; if you don't turn them over once in a while they start to stink.

One Step Forward and Two Steps Back

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One step forward:  One of the most air-headed federal judges in the history of the Republic is leaving.  So long, Rosemary Barkett.

Two steps back:  She's going to the international court that resolves claims arising from the Iranian seizure of the American embassy, thus giving Iran one more vote; and Barack Obama will name her replacement.


Professor Michael Yelnosky of Roger Williams U. Law has this article in the WaPo on the ABA's judicial selection committee.  His thesis is that the committee is biased in favor of business interests, but in the process of making his case he reveals a typical academic blind spot.

Five of the six new members work for some of the country's largest law firms and regularly represent some of this country's biggest corporations. The sixth represents businesses defending against claims for which they have liability insurance -- "insurance defense" cases. On the committee, they will join four other lawyers who work at large corporate firms, four who represent businesses in smaller law firms and one who specializes in defending lawyers sued for malpractice.

Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes.

Okay, so there are criminal defense lawyers on the committee, and Yelnosky is all upset that they are all white-collar defense lawyers as opposed to lawyers who defend murderers, etc. (red-collar?).

Why is the good professor not upset that all of the criminal law practitioners are defense lawyers and not prosecutors?

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