Recently in Judicial Selection Category

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?

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?
Todd Ruger reports for the NLJ (free registration required):

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.

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 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.*

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.

Trust in the Judiciary

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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.

But whatever the reason, the Court is slipping.  Reader's Digest reports that all nine Justices finished behind  --  you guessed it  --  Judge Judy:

  • 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%).

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The Memorial Service for Judge Bork

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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.

The service, shown here, also contained not a few reminders of his wicked sense of humor.

Kamala Harris for SCOTUS?

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

The President might be criticized for many things, like bankrupting the country, but the yelping that he's "sexist" is nonsense.

Liberals, please, get a life.  Obama hit the nail on the head:  Ms. Harris is, indeed, very attractive.

The problem is not her appearance or remarks about her appearance.  The problem is her public record and legal philosophy, which includes, but is hardly limited to, opposition to the death penalty, a punishment California voters recently reaffirmed.

Ms. Harris, it seems, is being "mentioned" as a possible Supreme Court nominee. But her noteworthy path to prominence eclipses her legal acumen, as Ed Whelan demonstrates.

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.

Read more here:
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.

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