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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England and Wales seek to diversify and expand judicial recruitment

Lord Kakkar, Chairman of the Judicial Appointments Commission (JAC), announced a new “forward programme” for judicial recruitment over the next five years. The programme “will enable aspiring judges to identify ‘clear pathways’ to office and help candidates decide which roles to apply for and when,” according to a news story in the Law Society Gazette.

“No longer will candidates have to decide whether to run the risk or not of applying for a Recorder exercise when they don’t feel quite ready, just in case there is not another one for a few years,” [Lord Kakkar] said. “[This will] allow candidates to plan for how to prepare for future applications by, for example, seeking mentoring or observing judicial work. It will also help the courts and tribunals with their resource planning of the recruitment exercises, and inform the sequencing of exercises to allow fee-paid appointees to gain sufficient sitting experience to become strong candidates in future salaried exercises.”

North Carolina judicial selection update

It has been a while since I wrote about the political wrangling between North Carolina Governor Roy Cooper and the state legislature over the selection of state judges. But a lot has been going on.

Some background: North Carolina primarily elects its judges, with the governor filling vacancies on an interim basis as they occur. But there seems to be a general consensus that the current process is not functioning well. Contested (now partisan) elections, political gamesmanship with respect to filling judicial vacancies, and outworn judicial districts all have contributed to the malaise. The issue has become a flashpoint in recent months, in part because of a widely publicized tug-of-war between the state’s courts and its Republican legislature. The court system has struck down many significant pieces of legislation in recent months, leading to loud complaints from legislators.

In the last several weeks, under the guise of judicial reform, the state legislature has passed two bills that would radically remake the state’s judicial selection process–and with it, the state’s judiciary.

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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.

 

California makes its judicial elections marginally less awful

Governor Jerry Brown has signed a bill requiring judicial candidates in California to appear on the ballot with “actual government job titles” rather than fanciful designations designed to elicit emotional voter reaction.  In recent elections, candidates have sought and received ballot designations like “Child Molestation Prosecutor” and “Gang Murder Prosecutor.” Under the new law, candidates will have to list either their formal job titles (e.g., “City of Los Angeles Deputy City Attorney”) or provide a short, neutral description of their work (e.g., “Attorney at Law”).

The bill had broad bipartisan support, and it is not hard to see why. Allowing candidates to select their own designations may spur the voter reaction needed to win (who doesn’t love a “Gang Murder Prosecutor”?), but badly poisoned the impartiality and legitimacy of California’s elected judiciary. How could any criminal defendant hope for a fair trial before a judge who owed his election to that prosecutorial slogan? Even if the judge was able to transition to a mode of impartial decisionmaker — which many prosecutors have done with great success — who would believe it?

This was, then, an eminently sensible move. But Californians should hardly be complacent. The state’s more than 1500 trial judges are still chosen by popular election, and there is little reason to be confident that merely removing the most egregious designations from the ballot will improve matters much. Over the years, the state’s judicial elections have been poisoned by ethical lapses, the flow of money into campaign coffers, and political dog-whistling.  And there is an alternative: the state uses gubernatorial appointment to fill unexpected vacancies on the trial court (due, for example,  to death, retirement, or promotion), and that process that could be extended to all trial court selection. True, it would take a constitutional amendment, but many states have done just that over the past 70 years.

I am not holding my breath just yet. But until serious judicial election reform comes to the Golden State, Californians are merely editing out the worst excesses of a lousy system.

Federal district court nominee deemed “unqualified” by ABA

U.S. Magistrate Judge Charles Goodwin, of the Western District of Oklahoma, has been deemed “unqualified” for the position of district judge by the American Bar Association’s Standing Committee on the Federal Judiciary. President Trump nominated Judge Goodwin to the district bench in July. The ABA gave no direct explanation for the “unqualified” designation.

Although the ABA’s evaluations of federal nominees date back to the Eisenhower Administration, recall that the Trump Administration has declined to share the names of its potential nominees with the ABA before nominations are announced. That approach (rare, but also used by George W. Bush) increases the likelihood that a nominee will be publicly identified as unqualified. (Potential nominees who receive a poor evaluation before an announcement is made can always be quietly dumped by the administration).

Judge Goodwin’s evaluation was not publicly released by the ABA; it was evidently leaked from a memorandum send to Senators Charles Grassley and Dianne Feinstein.  And Oklahoma’s Senators are standing by the nominee. But now that the evaluation is out, it raises serious questions about the qualifications and temperament of a sitting federal magistrate judge. Although magistrate judges do not serve for life, they do serve eight-year renewable terms. Judge Goodwin assumed the bench in 2013, and would be in place until at least 2021. It might prove to be an uncomfortable four years, and a more uncomfortable reappointment process, if his district court nomination is unsuccessful

 

Brooklyn judicial elections take an even more dismaying turn

This blog has been closely following the Democratic primary elections for county judge in Brooklyn, New York, where voters were forced to choose between candidates approved by the Democratic party machine and a group of “insurgents” running on an independent slate. The election took place earlier this month, and the results are … flabbergasting.

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