Recently in Judicial Selection Category
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.
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?
The U.S. Senate unanimously confirmed Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit on Thursday, making him President Obama's first successful nomination to the court and the first new judge there since 2006.The D.C. Circuit does not handle as many criminal cases as most circuits. CJLF filed its very first brief in that court just this year. The circuit has no jurisdiction to review criminal cases from the local D.C. court system, either on appeal or habeas.*
Srinivasan, the principal deputy solicitor general in the U.S. Justice Department, saw his nomination sail through a normally contentious Senate confirmation process. The 97-0 vote reflected his broad support from the legal community and legal pedigree that included work for both Democrat and Republican administrations.
The crime-related cases the D.C. Circuit does handle, though, include some of the most controversial ones. The Gitmo detainee cases are there. The lethal injection importation case, noted above, is there. The habeas "fast track" case will be there shortly.
So where does Judge Srinivasan stand on the issues of greatest importance to enforcement of the criminal law? I have no idea. His work as an advocate for the government in his present position is highly regarded, but that work is advocating for positions determined by others. A Lexis search for articles turned up nothing on criminal law or anything else. We will have to wait and see.
* No, that doesn't violate the Suspension Clause. Not even liberal demigods Brennan and Marshall thought it did.
- 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%).
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.
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.
Used to be?
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.
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.
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.
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.
[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.
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.
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.
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.