Senate Republicans alter blue slip process for two judicial nominees

Back in May, Senate Republicans openly mulled reforming the “blue slip” process to allow a federal judicial nominee to advance to a vote even if one home-state senator opposed the nomination. Now that reform is set to take place for two Court of Appeals nominees, David Stras of Minnesota and Kyle Duncan of Louisiana.

Debates over the blue slip process always feature some of the worst hypocrisy in the Senate, with the party in power (here led by Sen. Charles Grassley) waxing poetic about the Senate’s obligation to give every candidate a fair vote and the opposition party (here led by Sen. Dianne Feinstein) cynically urging that the president’s nominees are all dangerous extremists.

Imagine if other organizations had to rely entirely on outsiders to staff their core positions.

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Tweeting Judges, Revisited

Texas Supreme Court Justice Don Willett, who rose to fame in social media circles for his active and vibrant use of Twitter, was deemed “well-qualified” for a seat on the Fifth Circuit Court of Appeals by the American Bar Association earlier this week. Perhaps appropriately, the decision was tweeted out by another prominent member of the state court Twitterati, Georgia Court of Appeals Chief Judge Stephen Dillard.

Justice Willett has more than 100,000 Twitter followers and was a very active tweeter before his federal judicial nomination drove him to stay off the platform, at least temporarily. But he is no longer a rare exception to the rule that active judges stay off of social media. Chief Judge Dillard has more than 11,000 followers, and tweets several times a day, mostly on general legal issues.  He is joined by many other judges around the country with active Twitter accounts.

The legal profession has always been uneasy with judges engaging social media. David Lat took a look at this in 2014, concluding that the judicial use of Twitter to educate the public about the work of the courts was entirely appropriate, and that “judges just need to exercise sound judgment.”

The social media landscape has only grown in the ensuing three years, and the question is worth another look.  Is the judicial use of Twitter humanizing or harmful?

Continue reading “Tweeting Judges, Revisited”

Macfarlane on Posner on pro se litigants

Katherine Macfarlane (Idaho) has posted her new article, Pro Se Prisoners’ Posner Problem (Missouri Law Review, forthcoming), on SSRN. It is a review of Judge Posner’s recent self-published book, Reforming the Federal Judiciary.  Cribbing from the abstract:

This book review … is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that empathy is a poor proxy for meaningful institutional change, concluding that though Posner has identified unjustifiable structural inequality, he has stopped short of fixing it. If pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.

Macfarlane’s review lucidly points out the strengths and weaknesses of Posner’s discussion of the treatment of pro se litigants — and there are indeed many strengths and weaknesses.  The review is a good, short read for those who want a summary of Posner’s arguments — and a clear-eyed analysis of the argument’s shortcomings.

Twelve-year old federal court vacancy in North Carolina one small step closer to being filled

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.

 

D.C. Circuit allows live broadcast of oral argument for first time in sixteen years

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.

Former federal judge to run for U.S. Senate

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.

 

When judges are litigants

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.