Recently in Judicial Selection Category

The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.

SCOTUS Considers the Wichita Massacre

| 1 Comment
Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

The horrifying facts of the case are described briefly in CJLF's brief and press release.

The Federalist Society will have a "courthouse steps" teleforum.  Details at the end of this post.
 
The Kansas Supreme Court bent over backwards to overturn the supremely well-deserved sentences of the Carr brothers.  Along with a dubious holding on severance of the cases, the majority's far-fetched theory is that because the jury was instructed to find other matters beyond a reasonable doubt, the fact that the jury was not expressly instructed on the burden of proof for mitigation meant that the jury might have turned this around and imposed a similar burden on the defendant to prove mitigating circumstances.  Under this scenario, a jury supposedly might have ignored mitigation proved by a preponderance but not beyond a reasonable doubt and then unanimously agreed to a sentence that the jurors would not have thought just if they had considered those circumstances.

"Preposterous" barely describes this convoluted logic.

Background on the Weidert Case

| No Comments
Those who read the entry about the Weidert case in today's News Scan may wonder why Weidert was not sentenced to life without parole.  After all, isn't killing a witness to a crime to prevent his testimony "special circumstance" murder in California?

This case was decided in the darkest days of the California Supreme Court.  See People v. Weidert, 39 Cal.3d 836, 705 P.2d 380 (1985).  Cal. Supreme in those days bent over backward to resolve every conceivable issue -- and some inconceivable ones -- in favor of murderers.  Weidert was 17 1/2 at the time of the crime, and the court held that the circumstance of killing a witness to prevent his testimony in a criminal proceeding did not apply to a person who at least initially would have been in juvenile court for the underlying burglary.

CJLF filed an amicus brief to argue against this anomalous result.  (Not me, that was before my time here.)  Justice Lucas agreed with our position, as did Justice Mosk, but the court was so stacked against the law-abiding public at the time that the decision went 5-2 the other way.

Fourteen months later, the people of California tossed out three of the justices for their consistent tilt in favor of criminals.  That vote and the consequent vast improvement in the California Supreme Court remains to this day one of the strongest arguments against life tenure for judges.

Circuit Court Nominees Toast?

| 1 Comment
The Huffington Post reports that Senate Majority Leader Mitch McConnell has said that no more of President Obama's circuit court nominees will be confirmed.

I don't know if that's true; I have my doubts about the reliability of the Huffington Post. If it is true, however, it's good news for those favoring resolute law enforcement and judicial fidelity to law.

The President has made a few good selections to the bench, but the probabilities favor waiting for his successor.  

SJC: Take a Close Look at Ms. Loretta Lynch

| 3 Comments
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?

| 1 Comment
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

| No Comments
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?

| No Comments
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

| No Comments
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

| 3 Comments
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

| No Comments
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

| No Comments
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.
*                                         *                                      *
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?

| No Comments
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.

Monthly Archives