Since 2005, the United States District Court for the Eastern District of North Carolina has had an open seat, the product of partisan bickering in the Senate. George W. Bush nominated attorney Thomas Farr for the seat in 2006, but Senate Democrats failed to process the nomination. Barack Obama subsequently nominated two different women to the seat during his presidency, but both nominations were blocked by Senate Republicans. Now Donald Trump has come full circle, re-nominating Farr for the same seat. And despite deep opposition by Democrats, Farr’s nomination advanced out of the Senate Judiciary Committee yesterday on a straight party-line vote.
It’s unclear who benefits from this partisan rancor, but it is very clear who loses: the courts and the public. For a dozen years since Judge John Malcolm took senior status, the Eastern District has been down an active district judge. Given that the district is only authorized to have four active judges, the court has been operating at only three-quarters capacity for more than a decade — and through no fault of its own.
I have no opinion on whether Mr. Farr is the right man for the job. But the public should reject as outlandish that the seat was not filled by someone long ago.
This morning, the United States Court of Appeals for the D.C. Circuit permitted a live audio feed of an oral argument in Garza v. Hargen, a case involving whether the government should allow an undocumented teenage immigrant to obtain an abortion. It was the first live broadcast in the D.C. Circuit since a 2001 hearing in the Microsoft antitrust suit. Chief Judge Merrick Garland permitted the live stream in response to a request from the transparency group Fix the Court.
Although the argument itself has come and gone, the audio is available on the court’s website.
As the United States Supreme Court begins another Term this month, calls for the Court to open its oral arguments to cameras are getting louder. The Court has traditionally brushed off these demands, and there is little reason to believe that it will respond differently this year. But there is yet hope for supporters of court transparency: the state courts continue to lead the way in allowing broadcasts of courtroom proceedings. Two examples from just this week illustrate the point:
Russell Fagg, who recently retired from a life-appointed position as a United States District Judge in Montana, announced yesterday that he will seek the Republican nomination for the U.S. Senate from that state. The winner will oppose incumbent Jon Tester in 2018.
Judge Fagg is hardly the first jurist to seek a position in another branch of government — former Alabama Chief Justice Roy Moore recently won the Republican Senate nomination in that state, and another former Alabama Chief Justice, Sue Bell Cobb, is running for governor. In the other direction, many Supreme Court Justices (among them John Jay, William Howard Taft, Hugo Black, and Sandra Day O’Connor) came to the bench after extensive careers in the executive and/or legislative branches.
Judge Fagg is touting his judicial experience — more than 25,000 cases during a 22-year career. And there is something to be said for having a jurist’s mindset in the legislature — one that is capable of coolly and dispassionately evaluating complicated matters. Of course, having that mindset does not mean that one will use it, and the Senate has not exactly been a paragon of reasoned deliberation in recent years. But it will be interesting to see whether — and how — Montana voters account for Judge Fagg’s third branch experience as the race heats up.
I always find it interesting to follow cases in which a judge (or a group of judges) is a party, especially if the litigation involves some aspect of the judge’s professional role. Two such cases popped up this week, in very different contexts.
In New York, the state Court of Appeals heard a challenge to legislatively imposed limits on judicial health benefits, in an action brought by a number of active and retired lower court judges. The Court essentially was asked to rule whether the reduction in state contributions to judicial health insurance violated the compensation clause of the state constitution. Interestingly, many of the judges were skeptical of the claim, and the decision has yet to be rendered. But it was an excellent illustration of what I have called “judging when the stakes are personal” — conditions under which the judge cannot issue an entirely impartial decision, because he or she will necessarily be affected by the decision one way or another.
In a separate action with a very different flavor, state judges in New Orleans are defending a civil rights suit in federal court, accused of running a “debtor’s prison” by jailing poor criminal defendants who cannot pay court costs. The plaintiffs allege that the practice is unconstitutional. (The judges have moved to dismiss the action.) This is a different kind of judicial interaction — a federal judge being asked to assess the constitutionality of a state judicial practice — but it still raises interesting issues about how the federal judge views the work and professional role of her state colleagues.
We will follow both cases, especially the way in which each court the issues surrounding its fellow judges.
In the wake of the shooting of state judge Joseph Bruzzese on the steps of the Steubenville courthouse in August, the Ohio legislature has introduced a bipartisan bill to shield judges’ personal information from the public. The bill is still in its very early stages.
It is not hard to see why a bill like this might be necessary, but that realization is tinged with sadness. Judges are most effective when they are full members of the community, enjoying the same pleasures (and suffering the same indignities) as ordinary citizens. Grocery shopping, attending community events, waiting in line at the DMV, and similar activities foster an appreciation for everyday life that a judge needs to be an effective mediator, problem-solver, and voice for the community. When our judges are too cut off from the public, or exist in elite bubbles, they cannot have that effectiveness.
The benefits here of keeping a judge’s personal information from the public may well outweigh the costs. But we should be careful not to create a slippery slope in which the public and its judges lose critical opportunities for normal, everyday interaction.