The month in a nutshell: politicians debate how to choose judges, judges debate how to choose politicians, and the Supreme Court’s opposition to courtroom cameras becomes increasingly hard to justify
The intersection of politics and the law dominated court news in October, as debates over judicial selection raged at both the state and federal level. In North Carolina, the ongoing battles between the governor and legislature over judicial selection methods culminated in a legislative veto override, a cancellation of judicial elections for 2018, and current proposals to limit all judicial terms to only two years. This seems a transparent and clumsy effort to give the Republican-dominated legislature a chance to heavily influence the state judiciary, and there will surely be more wrangling in the coming weeks. Meanwhile, in California the governor signed a bill that would limit the designations a judicial candidate could use on the ballot, preventing candidates from running as a “Child Molestation Prosecutor,” for example. It’s a bandage on a much deeper problem infecting judicial elections in that state, but it was a bandage nonetheless. At the federal level, the President continued to nominate people to the bench, and the Senate is slowly processing those nominations, with one nomination finally advancing for a seat that has been vacant for twelve years.
However, judges also turned the tables last month, acting and opining on the selection of legislators and other politicians. In Australia, the High Court had to determine whether seven individuals holding dual citizenship were eligible to serve in the national legislature. In Kenya, the Supreme Court felt the fallout of last month’s decision to re-run the presidential election: Justices were repeatedly threatened, and only two were able to appear for an emergency hearing to postpone the election in late October. On a less serious note, a former federal judge in Montana announced plans for a Senate run, again suggesting an open doorway between the branches of government.
As its October 2017 Term began, the U.S. Supreme Court maintained its longstanding opposition to courtroom cameras, even dispatching Justice Breyer to argue against courtroom cameras in a television interview on CBS. This moment of terrific irony may have been lost on the court, but it highlighted the increasing isolation of its “no broadcast” position among American courts. Indeed, during the same month, the D.C. Circuit permitted a live audio broadcast of a high-profile appeal, and state judges in Iowa and Illinois indicated their support for video broadcasts of trial and appellate proceedings. And even though Judge Posner’s latest book and interview offered disappointingly little in the way of substance on the courtroom cameras issue, the simple fact that it was included among his recommendations has raised the profile of the issue further. The Supreme Court may still hold out on courtroom broadcasts for a while, but the needle is unquestionably moving away from the Court’s current position.
These are tumultuous political times in Catalonia, which voted last week to declare independence from Spain. (The Spanish government argues that the vote, and any subsequent action, are illegal.) The independence declaration, which may come Tuesday, has spurred the regional judiciary in Barcelona to request extra police presence. Currently the court building is protected by police loyal to the Catalan government; the President of the High Judiciary of Catalonia is requesting further presence by the National Police force.
The month in a nutshell: Kenya’s judges render an historic decision, the President’s federal judicial nominations continue apace, Brooklyn judicial elections reach an ugly end, and two federal judges make headlines for attacking their circuit executives
The most remarkable news of September 2017 was the decision by Kenya’s Supreme Court to invalidate that country’s presidential elections amid concerns of hacking and other foul play. The Court ordered new elections within 60 days, but has sustained ongoing verbal attacks in the ensuing weeks. In a far less courageous or moral act, the judiciary of the Maldives suspended the law licenses of one-third of the country’s attorneys who challenged the courts’ practices and politicization.
Stateside, President Trump continued to put forward nominees for openings on the federal judiciary. To date, he has made 105 nominations, far outpacing his immediate predecessor. The nominations are sorely needed, given the ongoing vacancy crisis on the federal bench. Hopefully the Senate will continue to act on the nominations, at least providing the nominees with an up-or-down vote without unnecessary blue slip shenanigans.
Federal judges made news for other reasons as well. Judge John Adams of the Northern District of Ohio sued the Sixth Circuit Judicial Council and the Judicial Conference of the United States for requiring him to undergo a mental evaluation in light of his erratic professional behavior. And (former) Judge Richard Posner had a shockingly busy month, resigning abruptly on a Friday, attacking his former Chief Judge Diane Wood in an Above the Law interview a couple days later, then releasing a self-published book containing a much more prolonged attack on Judge Wood a couple days after that.
And then there was Brooklyn, where the months-long circus of judicial primary elections finally reached its climax when a slim number of voters apparently decided that a candidate’s gender would be a better proxy for judicial skill than experience, endorsements, philosophy, or demonstrated ability. Good grief.
The month in a nutshell: attacks on judicial independence are joined by actual attacks on judges, and the judiciary continues its slow embrace of technology
After a challenging July that saw significant threats to judicial independence in Poland, court systems worldwide might have hoped for some restoration of respect for the third branch as an independent entity. Not so much: the Polish government continued to dig in its heels on reforms that would weaken the judiciary, leading to increased political tensions with the EU and especially Germany. Near the end of the month, the government of Romania and the Palestinian authority announced their own efforts to circumscribe their judges’ independence in the name of populist reform.
Even more disheartening was a series of threats and attacks–both physical and on the internet–on judges across the world. In Ohio, a judge was shot on the courthouse steps. Remarkably, he returned fire, and survived–and the fact that he was armed led to a broader discussion of how judges should protect themselves. In the United Kingdom, the courts announced that visitors would have to take a sip of their drinks to prove they did not contain disfiguring acid. In Mississippi, a state judge received death threats on social media after he removed the state flag (which partially contains the Confederate flag) from his courtroom.
But there was good news on the social media front as well. A Florida panel ruled that Facebook friendships with attorneys do not automatically disqualify judges from hearing cases. And more broadly in the realm of technology, two state supreme courts began streaming their oral arguments, and the U.S. Supreme Court finally adopted electronic filing.
Regular readers of this blog know that I am strong advocate of broadcasting courtroom proceedings. But increasing use of cameras and live streaming may mean the death knell for vivid courtroom illustration. Natasha Frost has a very interesting article at Atlas Obscura that looks at some of the history of this dying art.
For years, trials have been in decline in American courts: only 1-2% of all cases filed will eventually make it to a jury or bench trial. This decline has also meant fewer opportunities for young lawyers to sharpen their courtroom skills.
The ABA Section of Litigation has initiated a new program to give those young lawyers more courtroom experience, and the ABA’s Judicial Division has signed on. These changes cannot, by themselves, reverse all the trends that have moved litigation away from trial outcomes. But given the continued importance of trials in the American legal system, they are still welcome developments.
The month in a nutshell: Judicial independence is under attack worldwide, especially in Poland — where an effort to exert executive branch control over its judges draws international criticism.
Throughout July 2017, judges across the world faced a variety of challenges to their individual and organizational independence. Among other things, Californians commenced a poorly thought-out effort to remove Judge Aaron Persky. And facing low salaries, Uganda’s judges voted to strike if they did not receive a pay raise.
But the big news was in Poland, where the ruling Law and Justice Party proposed a series of bills that would have effectively given control of the judiciary to the executive branch. Among the proposals: cutting the judiciary out of the judicial appointment process, and allowing the Attorney General to remove and replace Supreme Court Justices he did not like. The bills were widely seen as a power grab that threatened the judiciary’s independence, leading to more than a week of protests in Warsaw and international criticism. Although two bills passed the Polish legislature, they were eventually vetoed by President Andrzej Duda. Still, Duda did sign other reform legislation, including a bill allowing unilateral replacement of lower court judges by the executive branch. Just yesterday, the European Union sent a letter to the Polish government, reiterating its intent to take away Poland’s voting privileges in that body if any Supreme Court Justices are removed.
Back in the United States, an increasing number of reports suggested the perils of using social media and texting for judges. And the President continued to make slow progress in nominating candidates for federal judicial vacancies.
There was good news, too, dear reader. Under the radar, many courts continued to initiate projects to reflect the needs of their communities. The New York courts announced a plan to place opioid overdose kits in their courthouses. North Carolina started two programs to ease court congestion in traffic and landlord-tenant cases. And courts across the country continued to increase the transparency of their work, by posting court filings online or by allowing cameras into the courtroom for hearings of public interest.