Recently in Judiciary Category
Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits. Further, there is not enough control on conflicting decisions when it comes to injunctions.The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:
Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.
Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.
Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one. Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked. Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.
Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them. The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.
The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order. At the end, the editorial has some worthwhile thoughts on what to do now.
There are lessons to be learned from this debacle, though. I will note a few of them in separate posts.
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.
The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience." Sounds nice, doesn't it? I mean, who could criticize a person for following his conscience? Well, there is a big difference between "conscience" in personal conduct and "conscience" as used in this context. Here, "conscience" is little more than a high falutin word for "opinion." On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.
Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what. This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.
People often do not state their views straightforwardly. Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves. Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment. The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment. However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with. To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996. Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate. This is particularly common in the Third, Sixth, and Ninth Circuits. Reversing them has become a significant part of the Supreme Court's workload.
In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:
As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?
Jonathan Adler has this post at the Volokh Conspiracy.
Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine. The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media. Some background to the story:
The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.
Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.Here is some of what Judge Stevens had to say on Facebook:
Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.