Recently in Judicial Selection Category

Lesson 2: Lower Court Appointments Matter

Here is the second lesson to be learned from the debacle noted this morning.

Supreme Court appointments are critically important, but lower court appointments are important, too.

The Supreme Court is one court of nine people.  It cannot and does not correct every wrong decision rendered by lower courts.  Not even close.  The high court takes about 1% of the cases it is asked to take.  It takes a higher percentage when the Government is asking, but not all.

Bad appointments to lower federal courts can have very long-lasting effects.  The Ninth Circuit was expanded during Jimmy Carter's single term.  The appointments he made, no doubt strongly influenced by California Senator Alan Cranston, produced the notorious "Ninth Circus" that plagued the Far West for an entire generation.

One of those appointees is reported to have said, regarding the Supreme Court and Ninth Circuit decisions, "They can't reverse them all."  Whether he really said that and whether, if so, he was joking (as he claims) is beside the point.  It is undeniably true.  The Notorious Ninth commits far more errors than the Supreme Court can possibly correct, and it does so knowing that many of these decisions are contrary to what Supreme Court precedents actually require.  Even when they are eventually reversed, those errors do damage in the interim, and the interim can be a long time.

During the Bush 43 Administration, the judge-pickers had a motto of "no more Souters" for the Supreme Court, but they did not apply that principle to the lower courts.  They made some solid picks, but they made some that cannot be explained on any basis other than politics and personal connections.
An op-ed in the WSJ makes this case convincingly, here.   It gets to the point quickly:

Moderates could do a lot worse than Judge Neil Gorsuch--and we probably will if he isn't confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Republicans control both the White House and the Senate, and the idea that they will allow Democrats to, in effect, designate the next Justice to accord with their own policy preferences is a fantasy.  If left-wing petulance forces Sen. McConnell to change the rules to "go nuclear," what, exactly, does the Left think is going to happen next?  

Here's a clue:  Needing only 50 votes next time (with Vice President Pence as the tie-breaker), Trump may feel free to name a more doctrinaire nominee than he has now.  Justice Breyer is 78; Justice Kennedy is 80; and Justice Ginsburg is 83.  The likelihood of at least one additional vacancy for Trump to fill, and possibly three, is anything but remote.

Still, if the Left wants to dig in its heels, it's fine with me.  Three more Clarance Thomases will warm the cockles of my cold, textualist heart.
This Politico article pretty much lays it on the line:  

Senate Democrats are going to try to bring down President Donald Trump's Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump's nomination. That means Trump's nominee will need 60 votes to be confirmed by the Senate.

I have only a question and a comment.  The question is what happened to the urgent cry, heard only very recently, that, "We have to end the partisan gridlock in Washington and learn to compromise!"  The comment is that, under the current Democratic stance, Antonin Scalia, one of the greatest legal minds in American history, would not be considered, much less confirmed, for his own seat.  

To Nuke or Not to Nuke?

| No Comments
Democratic Leader Sen. Chuck Schumer has signaled intransigence on confirming a Supreme Court nominee. He has said that Democrats would refrain from using the filibuster against a "mainstream" candidate, but made it clear that what he means by "mainstream" is a jurist who buys the legal and "living Constitution" agenda of the last Administration.  It is, to say the least, improbable that President Trump will put forward such a nominee. Accordingly, a filibuster seems likely at this point.

According to this article from the Hill, Majority Leader Mitch McConnell is reluctant to part with Senate tradition by ending the filibuster for Supreme Court nominees (i.e., by "going nuclear").

Earlier, I made one suggestion about how this might be handled.  A person well-acquainted with Senate procedures now makes another. 

How to Confirm Justice Kethledge

| 4 Comments
Or Justice Sykes or Justice Pryor or Justice Gorsuch, etc.

It has become reasonably clear that the Democrats will filibuster anyone Mr. Trump nominates.  They will do this by declaring such a person "outside the mainstream," which means simply outside the sort of "mainstream" that embraces a Constitution that meanders with the fashion of the day.  And we all know the fashion of the day gets dictated by the same groups that now support [Ed. note:  I first said "bring us"] Black Lives Matter, expansive drug legalization, and the narrative of America as a callous and racist cauldron.

In other words, there will be a filibuster against anyone Trump will, or should, nominate.

Is there an effective strategy, short of the nuclear option (i.e., eliminating the filibuster) to get a sensible, mainstream conservative confirmed?

Yes, there is.  I'll call it the Middle Way.
The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.

The Scope of the Victory

| 3 Comments
The Washington Post's coverage of Trump was as biased as I have seen during a campaign.  It did not outdo the NYT, but neither did it make much of an effort to resemble neutral journalism.  It was one snarky, condescending article after the next. I'm expecting oddles of sour grapes over the next few days.  For now, however, it does an accurate, short summary of the extent of Trump's victory:

Because his adopted party maintained its majorities in the Senate and the House, Trump can now advance a very ambitious agenda. He gets to pick Antontin Scalia's replacement, vindicating Mitch McConnell's decision to deny Merrick Garland a hearing and ensuring that the GOP will control all three branches of government. Because Barack Obama has relied so much on executive actions since the 2010 midterms, if he chooses, Trump can roll back many of the president's signature achievements. The Republican Congress can also use budget reconciliation to eviscerate Obamacare. TPP is definitively dead.

I want to emphasize especially the key role Sen. McConnell played in giving our country the opportunity, at least, to build on Justice Scalia's legacy rather than overrule it bit-by-bit.
From the Stuff Stumbled Upon While Looking for Something Else File comes this press release of three weeks ago from Arizona Governor Doug Ducey:

Governor Doug Ducey today announced the appointment of Maricopa County Superior Court Judge Paul McMurdie to the Arizona Court of Appeals, Division One.

Judge McMurdie has served on the Maricopa County Superior Court since 2005.   He has presided over criminal, civil, and family law cases, and is currently the Presiding Family Court Judge. 

Prior to his trial court appointment, Judge McMurdie worked as Division Chief of Appeals and Research at the Maricopa County Attorney's Office, and also as Chief Counsel of the Criminal Appeals Section of the Arizona Attorney General's Office, under Attorneys General Grant Woods and Janet Napolitano.

It was in those pre-bench capacities that I had the pleasure of working with Paul.  Well done, Gov. Ducey.

Photo Finish Senate

| 8 Comments
In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch.  As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.

There is something to be said for having the Senate and the White House in control of opposing parties.  We will get more moderate judges that way.  Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.

No Blank Check for President Hillary

| No Comments
It is likely that Hillary Clinton will be elected President.  I don't have to like it,* but the polls say what they say.  The question is what can be done to cabin her decidedly unhealthy agenda (exemplified by, among other things, her embrace of the Black Lives Matter movement).

One thing that can be done is to keep the Senate in the hands of the opposition party. This will have, among other salutary effects, an influence on how far to the left she might go in making Supreme Court and court of appeals picks.  

Thus, I have contributed to the campaigns of a number of Republican Senate candidates, including Rubio, Ayotte, Toomey, Heck, Young and Burr.  Rubio is likely to win; the others are close races that could go either way.  

*  Not that I much like any probable outcome of the Presidential race, as it is presently constituted.  

Cheever Follow-Up

| No Comments
Today's News Scan notes the affirmance by the Kansas Supreme Court of the death sentence of Scott Cheever for the murder of Sheriff Matt Samuels in the performance of his duty.

This case was decided on remand from the United States Supreme Court.  The first time out, the Kansas Supreme Court reversed the conviction.   That court found a Fifth Amendment violation in the requirement that Cheever submit to a mental examination when he claimed a "mental disease or defect" defense.  The U.S. Supreme Court reversed unanimously in an opinion by Justice Sotomayor.  CJLF filed an amicus brief in the case.

On the first round, the Kansas Supreme Court considered only the penalty phase issues likely to arise on retrial because the case was going to be retried anyway.  On remand from the U.S. Supreme Court, they needed to consider in full whether to affirm the penalty.

One of the issues was whether the defendant was entitled to an instruction that the defendant need not prove his mitigating circumstances beyond a reasonable doubt.  The Kansas court had held that the Eighth Amendment requires this, but that holding was reversed last January by the U.S. Supreme Court in Kansas v. Carr.  CJLF also filed a brief in that case.  The state court can, and did, hold that the instruction is still required by state law.  However, because Cheever did not request the instruction a different standard of review applies, and the absence of the instruction was not so detrimental as to require reversal in this case.

Affirmance of this entirely just sentence is a good result, but long overdue.  It took so long because the Kansas Supreme Court erroneously decided two issues of federal constitutional law.  Kansas has the worst system of any state for appointing Supreme Court judges -- the State Bar is the gatekeeper to the bench -- and it shows.  Reform of this process should be top priority in that state.

Fleshing Out the Trump Administration

| 9 Comments
There are five months or so until the election.  At this point, the major polls have Clinton and Trump tied.  Among registered voters, WaPo/ABC has Trump ahead by 2; for NBC, it's Clinton ahead by 3; for NYT/CBS Clinton is up by 6; and Fox has Trump up by 3. Likely voters tend to be slightly more Republican and a slightly better predictor of actual results.  Thus, for now, it's a tie.

With that as the state of play, I'm happy to join the game going on elsewhere in this town, to wit, suggesting names for Trump's VP and the Supreme Court nominees.

N,B. This is not an endorsement of Trump.  CJLF does not endorse candidates, and I personally am not at this point.  My favorites, Ted Cruz and Marco Rubio,  didn't get this far.

Trump's Supreme Court Candidates

| No Comments
ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

I know three of them slightly, none of whom I am going to name.  They would be excellent. My one big regret about this list is that it does not include former Solicitor General Paul Clement.

The difference in probable Supreme Court picks between Sec. Clinton and Donald Trump remains, in my view, the most important reason to be, if not enthusiastic about Trump, at least not in hellish despair.

The Evolving Constitution

| No Comments
One of the classic debates in constitutional law is about whether the Constitution "evolves."  This is, for example, at the center of much of the discussion concerning the death penalty and the Eighth Amendment, as "currently understood."  The battle between Justice Scalia's concurrence in Glossip and the two-Justice dissent filed by Justice Breyer is an apt illustration.

One of the country's leading senators has seen the Constitution evolve dramatically about a question now much in the news, given the pending Supreme Court nomination.
Judge Garland seems to me to be a bright, fair-minded and decent man.  He has experience at a high level in the Justice Department.  Taking what might be called a neutral view, he is qualified for the Supreme Court in all the usual senses of that word.

The problem is that I don't take a neutral view, and  --  let's be honest about it  --  neither does anyone else.  Certainly the President didn't when he nominated Judge Garland.  Instead, the President knew what the New York Times (yes, that New York Times) now discloses (emphasis added):  "If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years."

This is the Times' story, mind you.   Note in particular its graph, showing that a Justice Garland would vote squarely in the middle of the liberal bloc, a tiny bit to the right of Ginsberg and a tiny bit to the left of Kagan.

What this means is that Republicans are not taking that much of a gamble in refusing to move him along the path to a vote.  The likelihood is that, even if there is a Democratic President and Senate in 2017, the nominee to replace Garland (if he gets replaced, which is also unknown) would not be that much more liberal, if at all.

Monthly Archives