Recently in Judicial Selection Category

Trust in the Supreme Court is routinely higher than in either the President or Congress, but this is not necessarily good news for the Justices.  My own view is that growing skepticism about the Court is the product of judicial sprawl.  The Court is seen, all too often correctly, as adopting the policy views of the majority of its members at any one time, rather than adhering to law.  This is the sort of judicial indiscipline that brought us such decisions as Miranda and Kennedy v. Louisiana.

• We trust TV judges more than Supreme Court Justices. Straight-talking dispute settler Judge Judy (51%) had the highest score of all the judges on our list - including all nine Supreme Court Justices, and was closely followed by Judge Joe Brown (48%).
  
  Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

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  Read more here: http://www.heraldonline.com/2013/05/07/4840121/readers-digest-announces-100-most.html#storylink=cpy

My wife and I had the sad honor earlier this week of being invited by Judge Bork's family to a memorial service dedicated to his life and work.  It was a bracing reminder of how Judge Bork, with few others by his side at the time, led a revolution in legal thinking that benefits jurisprudence to this day, even if not followed nearly as often as its power rightly commands.

President Obama is taking flak today for calling California Attorney General Kamala Harris "the best looking attorney general."

The WSJ has an editorial titled "Judges, Politics, and George Soros."

Of all the ways to select judges, among the worst is to restrict the chief executive to choosing from a short list given to him by a committee dominated by the state bar.  This method is sometimes called the "Missouri plan."  A common and grossly misleading name is "merit selection."  The theory is that the commission is made up of fine, nonpartisan, upstanding people who will select on the basis of merit, free from political considerations.  The reality is that the commissions come to be dominated by the political left, and the governor is forced to choose the least bad of a short list of judicial activists.  So-called "merit selection" actually just substitutes bar politics for general politics, a change from bad to worse.

Another bad way to choose judges is to have them run for election like other elected officials, with political party nominations and named opponents on the ballot.  Pennsylvania has had some bad experience with this lately.  The editorial notes that three former governors are now pushing for the state to change from bad to worse.

Meanwhile, states that have tried the "Missouri plan" and are fed up with it are moving in the other direction, according to the editorial.

U.S. District Judge Edward Garcia of Sacramento has announced his full retirement, Denny Walsh reports for the SacBee.  He has been on "senior status" for some time.

This is a timely reminder of what is at stake in tomorrow's election.  The President we choose will be choosing the judges of all federal courts for the next four years.  As important as Supreme Court appointments are, the wrong President can also cause grave damage through lower court appointments.  Jimmy Carter got no Supreme Court appointments, thank God and Potter Stewart, but he transformed the Ninth Circuit into the Ninth Circus, and we feel the pain to this day.

Let us hope the American people make the right choice.

The News-Tribune in Tacoma, Washington has one of the most perceptive editorials on a judicial race I have seen in a long time, aptly titled "Our tortured pick for state Supreme Court: Sanders."  In the primary for Washington Supreme Court, the voters had a choice between the good, the bad, and the OMG.  In the general election, it's down to the latter two.

Not that we don't like Richard Sanders and Sheryl Gordon McCloud. Each is highly intelligent and devoted to the law. It comes down to the role of the judiciary. Either McCloud or Sanders would bring a settled ideological agenda to the cases that reach the high court.

Sanders is a doctrinaire libertarian. McCloud is what used to be called a flaming liberal. Passionate political beliefs keep the fires of democracy burning, but good court decisions aren't born in furnaces. Sanders and McCloud both appear likely to equate their personal philosophies with constitutional dictates.

Used to be?

This is a matter of degree and temperament. Every judge brings a personal approach to the law, but sometimes the law is bigger than the judge. We don't think Sanders gets this.

Unfortunately, we have precisely the same concerns about McCloud.

In a post last Friday about the Florida Supreme Court election, I noted why appointment with yes/no retention elections is a better method of judicial selection and tenure than life tenure.

At the diagonally opposite corner of the contiguous 48 we see why selecting justices in regular election campaigns is a bad idea.  Friends of justice will have to mark their ballots while holding their noses.  See prior post.

Steve Miletich has this article in the Seattle Times.  "In 2010, McCloud says, Sanders inflamed racial tensions when he said certain minority groups are disproportionally represented in prison because they commit more crimes."

It is true beyond dispute that the crime rate is higher among black Americans, particularly, than among whites, and that is the primary reason why the prison demographics differ from the general population.  We can argue about the underlying reasons for this fact, but no rational person can dispute the fact.  How ironic that Sanders' biggest problem comes from one of the more sensible things he has said.

[Sanders] also stood up at a meeting of the Federalist Society in Washington, D.C., in 2008 and shouted "Tyrant! You are a tyrant!" at then-Attorney General Michael Mukasey after Mukasey defended the Bush administration's counterterrorism policies.

"Those are not examples of professionalism, they are not examples of objectivity, they are not examples of fairness," McCloud said.

That is quite true, and that is one of the reasons for the nose-holding.  Based on what I have heard from Washington prosecutors, though, the chances of victims of crime and the law-abiding public getting objectivity and fairness from McCloud are roughly those of a snowball in Mount St. Helens during an eruption.

The ongoing problem in judicial tenure is striking a balance between judicial independence and judicial responsibility.  We want judges to be independent enough to render decisions based on the law and not politics.  But if they are too independent, they tend to drift toward rendering decisions based on their personal preferences rather than the law.  That is the problem with life tenure for judges with the power of judicial review of statutes.  The Antifederalist writer "Brutus" nailed it way back in 1788:

In short, they are independent of the people, of the legislature, and of every power under heaven.  Men placed in this position will generally soon feel themselves independent of heaven itself.

Hamilton's response is one of the weakest and least convincing passages of the Federalist, and history has proven Brutus right.

There is no perfect solution to this problem, but the one that comes closest to optimum, in my view, is for judges to stand for a yes/no retention election at some long interval.  Experience shows that it is extremely difficult to remove a judge in such an election, but the safety valve is there when it is truly needed.

In Florida, the Republican Party's executive board has voted to oppose three justices of the Florida Supreme Court for retention.  Their announcement cites the capital case of Joe Elton Nixon.  Nixon carjacked Jeanne Bicker, forced her into the trunk of her MG, drove her to a remote area, tied her to a tree with jumper cables, and set her on fire, burning her to death.  The Florida Supreme Court's reversal was indeed an awful decision.  CJLF's amicus brief in the U.S. Supreme Court is here.  The high court reversed in a unanimous decision by Justice Ginsburg.  See Florida v. Nixon, 543 U.S. 175 (2004).

I do not know enough about these three justices' entire records to know if they should be retained, but they are making the usual invalid argument that any campaign against retention is an attack on "judicial independence." That is essentially an argument against having retention elections at all.  Michael Peltier has this story for ThomsonReuters.

California's experience proves the contrary.  Three justices were deservedly denied retention by the people in 1986.  The court was vastly improved afterward.  We very rarely see its decisions reversed by the U.S. Supreme Court.  When the high court resolves conflicts between the California Supreme Court and the Ninth Circuit, the answer is nearly always that the California Supreme Court was right.

Let the Florida justices defend their records on the merits.  Judges should reverse criminal judgments, even in horrible cases, when the law requires them to do so.  They should not, however, bend over backward to find an excuse to let murderers off the hook.  When they do, the people should show them the door.

Good news from the Lone Star State.  Judge Kevin Fine, who wouldn't let a minor matter like higher court precedent on point get in the way of declaring the death penalty unconstitutional (see posts here and here), has resigned from the bench.  Brian Rogers has this story in the Houston Chronicle.

No so good news in the Pacific Northwest.  The primary election for Washington Supreme Court was a photo finish, but the people will now have a choice in the general election between a dyed-in-the-wool "true believer" defense zealot, Sheryl Gordon McCloud, or the return of the crackpot heckler they bounced last time, Richard Sanders.  See prior posts here, here, and here.  The bitter irony is that those who seek justice in the State of Washington are going to have to hold their noses and support The Heckler.

Which jurisdictions have the worst judges?  It appears to me that it's a close competition between those jurisdictions on the polar opposite ends of the selection method scale.  Appointment with life tenure gets us judges such as Stephen Reinhardt of the Ninth Circuit, who slip in when one party has a political lock and are then fixed for life.  States with purely electoral systems get crackpots such as Fine and Sanders.

The least-bad medium (if not necessarily happy) is appointment followed by yes/no retention elections, such as California has for appellate judges.  The people have only bounced appellate judges here once, but that was exactly when we should have, and the knowledge that one might be challenged induces a bit more caution and a bit less arrogance than we see on the federal bench.

Have Republicans really obstructed President Obama's nominees to the federal courts of appeals to an unprecedented degree, as we so often hear?

No, says a study from the Democrat-leaning Brookings Institution.  The confirmation rate for Obama nominees is about the same as in prior administrations.  The percentage of Democrat-nominee circuit judges in total is up from 39% at the start of the Administration to 49%.

Todd Ruger has this post at BLT.

No federal circuit judge has been confirmed this close to an election in 20 years, and yesterday Republicans blocked an attempt to confirm one, reports Todd Ruger at BLT.

"This is not about the individual who has been nominated," Senate Minority Leader Mitch McConnell (R-Ky.) said on the Senate floor in a debate. McConnell instead called the block part of a Senate tradition for "a bipartisan timeout" before the Nov. 6 presidential election.

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The White House decried the block of Bacharach and said nearly one in eleven federal judgeships stands empty, and the judicial vacancy rate has never been this high for this long. "The American people deserve better than this unprecedented partisan obstruction of the President's efforts to ensure a fair and functioning judiciary," White House Counsel Kathryn Ruemmler said in the statement.

The "unprecedented" claim is, of course, nonsense.  Each time the Republicans take the White House, the Democrats raise obstruction to a new level.  It was the Democrats who invented "borking."  It was the Democrats who made confirmation filibusters routine.  (Before the Democrats began filibustering, the Republicans had filibustered a grand total of one judicial nomination in all of American history -- LBJ's ethically challenged CJ nominee who subsequently resigned from the Supreme Court in disgrace.)  When the Democrats get the White House back, the Republicans respond at the same level, at that is where we are today.

Should the Senate stop confirming circuit judge nominees at this point in the election cycle?  That's debatable.  There is no debate that it has, though, no matter who is controlling the Senate or who has the White House.  The "unprecedented" remark is just one more falsehood in the steady stream.

The American Bar Association President has sent a letter to Senate leaders asking for confirmation of nominees to the federal courts of appeals to continue.  A story and a link to the letter are available on the ABA's website.

I made a quick check of the ABA's news release archives and did not find similar concerns expressed in 2008.  If anyone knows of a similar letter in that year, please let us know in the comments.

The Senate today invoked cloture on the nomination of Andrew Hurwitz to the Ninth Circuit.  Todd Ruger has this post at BLT.  Hurwitz has the support of Arizona Senator Jon Kyl, whose opinion I have great respect for.

President Obama nominated Deputy SG Srikanth Srinivasan to the D.C. Circuit.  Chelsea Phipps has this post at WSJ Law Blog.  Srinivasan is supported by his former bosses Sandra Day O'Connor and J. Harvie Wilkinson.

"I just think the world of him," said Judge J. Harvie Wilkinson."I just think he has a superb judicial temperament. He's moderate in his inclinations. I think that he would win respect from many different quarters for the way that he approaches cases."

President Obama also renominated Caitlin Halligan, whose nomination was blocked by a filibuster in the previous Congress.

Jerry Markon and Alice Crites have this article in the WaPo on Mitt Romney's record on judicial appointments as Governor of Massachusetts.  Romney came into office believing that an independent judicial screening commission was the way to clean up the appointment process, but he later changed his mind.

In my view, that is a case of learning the hard way that proposed reforms are not always all they are cracked up to be.  In fact, they rarely are.  "Independent" nominating commissions are a failed model.  They typically result in a transfer of nominating power from elected officials to whoever chooses the commission, which all too often means bar organizations.  Instead of eliminating politics, it substitutes bar politics for general politics.  Bar politics is the worse of the two by far, as the general public has no say in the process.

The other big problem is judicial activism -- the tendency of courts to usurp to themselves decisions that the constitution actually vests in the elected branches.  The bar loves judicial activism.  It makes the legal profession enormously powerful relative to everyone else.  The more influence the bar has on judicial selection, the more judicial activists you are going to get.   Legal academics love activism too.  Courts pay a lot more attention to what they think than legislatures do.

It is, of course, a natural human tendency for government officials of all types to interpret vague boundaries in a way that expands their own turf.  Judges sometimes drift to a more activist view of the role of the judiciary and rarely drift the other direction.  To counteract this tendency, appointing authorities need to constantly use the appointment power to steer the judiciary away from activism.  It is like driving a car with misaligned wheels.  It naturally veers to one side, so the driver must apply constant pressure to the steering wheel in the other direction to keep it going straight.  Failure to do that, so that the car runs off the constitutional road, is dereliction of duty.  A commission that nominates the candidates the organized bar and academics rate highly is not going to apply the needed correction.

It appears Mitt Romney has learned this lesson, and I am very glad to know that.

The Senate has unanimously confirmed Roy McLeese to the DC Court of Appeals.  Todd Ruger has this post at BLT.

A former law clerk to Justice Antonin Scalia, McLeese was an assistant to the solicitor general from 1997 to 1999, arguing four cases before the U.S. Supreme Court. More recently, he temporarily served as the acting deputy solicitor general, filling in for Michael Dreeben while Dreeben taught at Duke Law School.

We at CJLF had the pleasure of working with Roy during his ASG stint, and we congratulate him on his confirmation.

Note:  The name of the court has been corrected since the original post.  Thanks to commenter "dccircuitreview" for pointing this out.