Some quick thoughts on the Kavanaugh nomination

A few quick hits on President Trump’s nomination of Brett Kavanaugh to the Supreme Court:

  1. Predictions are easy to make, and hard to make correctly. If I were better at this, I would have moved to Vegas already.
  2. Judge Kavanaugh will be subject to the same partisan rancor that has infected our federal judicial nomination process for nearly two decades. But he is surely qualified for the Supreme Court. His dozen years on the D.C. Circuit, as well as his educational and professional background, more than qualify him.
  3. That said, I firmly believe that the President would have been more politically expedient for the President to nominate Joan Larsen (or one of several other former state supreme court justices) for the seat. Judge Kavanaugh is a “safe” pick in part because he has the profile of a consummate Washington insider. Born and raised in Bethesda, his professional career has primarily been spent within the federal government, and he doesn’t appear to have spent much time at all outside the Beltway. (Yale and two clerkships seem to be the bulk of his non-D.C. experience). President Trump had a real opportunity to woo voters in Middle America with a non-East Coast pick, and there were several highly qualified nominees of that sort on his 25-person short list. It is disappointing that someone with greater familiarity with America beyond the Beltway wasn’t picked.
  4. In the same vein, and despite Judge Kavanaugh’s credentials, I am also disappointed that another D.C. Circuit judge will populate the Supreme Court. The Court already has three D.C. Circuit alums (Roberts, Thomas, and Ginsburg). The D.C. Circuit is an important court, to be sure, but it hardly needs four justices out of nine with that limited perspective.
  5. I thought Trump would nominate a woman, if only to create a political advantage over the identity politics-obsessed Democrats in the Senate. The Kavanaugh nomination indicates that Trump was not interested in engaging that dynamic this time around. But it’s hard to believe that he wouldn’t revisit it soon. Perhaps he is counting on another vacancy opening in the next two years; if Justice Ginsburg retires, he could nominate a woman (perhaps an even more seasoned Joan Larsen) and really watch the fur fly.
  6. From the perspective of the courts themselves (and, after all, that’s what this blog is about), the Kavanaugh nomination means more judicial cascades to come. Assuming the nomination is successful, Trump will now have the opportunity to fill Judge Kavanaugh’s D.C. Circuit seat with a (presumably) younger judge of the same qualifications and ideological bent. If he pulls such a judge from the district court ranks, he will have another vacancy for the trial courts as well. Given the record pace with which he is nominating (and the Senate is confirming) federal judges, the courts will have a continued infusion of relatively young (Gen X) judges at all levels.

Japan: a land of many courts and relatively few judges

The Japan Times has an interesting article on the relatively small number of formal judges in that country, given its large number of courts. Japan has over 1,000 courts within its judicial hierarchy, but fewer than 4,000 total judges. And many of those judges have mostly administrative, as oppossed to courtroom, roles. That poses an challenging question for a country which works to take many cases to trial: how are there enough judges to hold all the trials guaranteed under the law?

The answer lies in a combination of (1) a broad network of judicial assistants, many of whom serve as shadow judges; and (2) resolving cases short of a full-blown trial. As the article explains:

How do they manage it? They get a lot of help; there are approximately 10,000 judicial clerks (shokikan) who play a key role in case management and documentation. Those with plenty of experience might well be called “magistrates” in that they effectively run some proceedings, such as bankruptcy and enforcement matters, where the need for formal judicial determinations of fact or law is limited. Some even end up as summary court judges.

In some family and civil proceedings, lawyers are also used as part-time “judges” (though they are not referred to by that term). Family and civil courts also rely on thousands of part-time conciliators from the neighboring community (including members of the local bar association) to help disputing parties arrive at mediated settlements. District courts also host labor tribunals that resolve labor cases using a mixed panel of a real judge and representatives of both sides of the employment relationship.

Still, most these proceedings are not “trials,” the right to which is supposedly guaranteed by Article 32 of the Constitution. In English, this bit of the charter appears to guarantee “the right of access to the courts,” but in Japanese it actually refers to “the right to a trial in a court.” That many cases are not actually trials is convenient because it means they can be resolved in closed proceedings (since constitutionally only “trials” must be conducted in open court) with fewer due-process protections.

Even when a case is or becomes a full-blown trial, it is not uncommon to hear lawyers complaining about judges cutting corners in civil cases to get them off their docket. This can often involve pressuring parties to settle. Some may be tempted to attribute this to cultural factors, but settlement is also just easier for judges — they don’t have to write a judgment or worry about being overturned on appeal.

The astute reader will identify many similarities to the current state of the American civil justice system, for better or for worse.

Israel cracks down on ex parte communications between judges and prosecutors

In the wake of a high-profile scandal in which prosecutors in a major corruption case exchanged private text messages with a judge about its planned strategy, Israel’s Supreme Court has announced new rules to prevent further one-sided communications.

Under the new rules all contact between the judge and the investigative and prosecuting bodies will only be made during court hearings. Aside from in the courtroom, no direct requests are to be made of judges, but rather are to be filled through the court administration.

This makes a great deal of sense, and gives the court system a chance to rebuild whatever public legitimacy it has lost from the scandal.

Predicting the next Supreme Court nominee

Portico_-US_Supreme_Court_BuildingAnthony Kennedy’s impending retirement means it’s open season on predicting who will be nominated to fill his seat on the U.S. Supreme Court. I offer my own analysis and prediction below. It’s a familiar name for those who have been paying attention to President Trump’s judicial nominations so far.

The President has confirmed that he intends to nominate someone from the list of 25 candidates previously identified by the White House. That is the only certainty. But it’s still possible to whittle down that list significantly using a combination of logic and observation of the President’s nomination trends.

Continue reading “Predicting the next Supreme Court nominee”